IMAGE PURCHASE TERMS & CONDITIONS

1.    Introduction

1.1.     These Image Purchase Terms & Conditions ("Purchase Terms”) set out the basis on which aperturePIX Pty Ltd (ABN 87 666 022 662) (“we”,”us” and “our”) licenses the purchase of our Digital Content, and are subject to our main Website Terms of Use, which can be found here. 

1.2.     In these Purchase Terms, the term “Digital Content” refers to our photographs that are available on our Website for purchase.

2.    Types of licenses

2.1.     We offer two types of licences for our Digital Content available for purchase, which are called “Rights Managed” (RM) and “Royalty Free” (RF) licences.  Our Website will display which licence type is available for each item of our Digital Content.

3.    Ownership of our Digital Content

3.1.     Our Digital Content is protected by copyright.  We (or our licensors) own and retain all right, title, and interest in our Digital Content at all times, and do not assign or transfer copyright, or any other intellectual property rights in the Digital Content to you, unless expressly stated in writing in any agreement with you.  All use by you of our Digital Content is otherwise subject to the terms of the respective licence purchased, as set out in these Purchase Terms.

4.    Ordering & pricing

4.1.     Licences to use our Digital Content are granted in return for you paying the relevant price, as specified for each item of Digital Content on our Website.

4.2.     Clauses 4.3. to 4.5. apply only to the purchases of RF licenses. Clause 4.6. to 4.9. apply to purchases of both RF and RM licences.

4.3.     Please follow the onscreen prompts in our online store to place an order to purchase a RF licence. Each order is an offer by you to purchase a licence to use the Digital Content specified in the order subject to these Purchase Terms.

4.4.     After you place your RF licence order, you will receive an email from us acknowledging that we have received it. Please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 4.5 below.

4.5.     Our acceptance of your order takes place when we send an email to you providing you with the Digital Content or a link to access the Digital Content after your payment for the respective Digital Content has been received, at which point a contract between you and us will come into existence.

4.6.     If we are unable to supply you with the Digital Content for any reason, we will inform you of this by email and we will not process your order. If you have already paid, we will refund you the full amount.

4.7.     All prices on our Website are displayed in Australian dollars (AUD).  Our prices are exclusive of any government taxes or charges that may apply. 

4.8.     We may change or update our prices from time to time. We may also offer different prices for any particular item of Digital Content based on characteristics such as image size or resolution, the file type or format of delivery, licence duration, or the type of licence granted. 

4.9.     A separate licence will commence in respect of each item of Digital Content purchased, subject to these Purchase Terms and our general Website Terms of Use, upon payment being confirmed as completed and you having received the item of Digital Content from this Website following your purchase.

5.    Payment terms & delivery of Digital Content

5.1.     This section applies only to purchases of RF licences.  A separately negotiated licence terms will apply to RM licences as per clause 6.2.

5.2.   Payment can be made by any method of payment that is facilitated on our Website.  Third party payment provider terms and conditions may apply, which will be linked to or displayed at point of purchase.

5.3.   Following payment, we will send you an email containing the Digital Content or provide you with a link to download your purchased item(s) of Digital Content.  There are no delivery costs for the purchase of Digital Content through the Website. 

5.4.     We will let you know of any delivery costs that may apply in case of providing hard copy products, or if Digital Content is to be delivered to you on hard copy media (such as external storage or disc).   If you would like Digital Content to be provided using this method, please contact us at contactme@aperture-pix.com to discuss our fees, including for postage and handling.

5.5.     All requests for refunds/cancellations must be made in writing via email to contactme@aperture-pix.com. To the extent permitted by applicable law, we will consider granting such refund/cancellation on a case-by-case basis. Provided that the request is made within 14 calendar days and the Digital Content has not been used, we may cancel the relevant order and issue a full refund via your method of payment. Subject to applicable law, no credits or refunds are available for cancellation requests received more than 14 calendar days from your receipt of the Digital Content. In the event of cancellation, your rights to use the Digital Content terminate, and you must delete or destroy any copies you have of the Digital Content.

6.    Rights Managed Licence

6.1.     A Rights Managed (RM) licence permits specific use of the item of Digital Content based, with the licence fee for Rights Managed images based on usage.  RM licences cannot be purchased via our online store, as the price varies according to how the image is to be used, where it is used, for how long, and for what purpose as well as image size.  After the rights expire, they may be renewed or extended by purchasing another licence.

6.2.     Please contact us if you would like to discuss purchasing a RM licence for any item of Digital Content, and we will be happy to negotiate the terms of a licence with you.  We will then provide you with a separate licence agreement setting out the permitted use(s), based on your particular scenario.

6.3.     Unless agreed by us in writing, a RM licence is non-exclusive, and we may license the same Digital Content to other purchasers.

6.4.     All RM licences are also subject to the restricted use limitations set out in sections 8. and 10. below.

7.    Royalty Free Licence

7.1.     A Royalty Free (RF) licence is one by which the purchased item of Digital Content can be used on an ongoing basis, subject to these Purchase Terms, without ongoing royalty fees.

7.2.     In return for the purchase price, and subject to the rest of these Purchase Terms, a RF licence grants you the following licence to use the item of Digital Content:

a    Non-exclusive:  We may also license the Digital Content to other purchasers, and you do not have any exclusive right to the Digital Content.  If you would like to purchase an exclusive licence, please contact us at contactme@aperture-pix.com to discuss.

b    Worldwide:  You may use the item of Digital Content in any jurisdiction in the world.

c    Unlimited:  You may use the item of Digital Content any number of times up to 500,000 installations.  An “installation” in this context means prints or copies on any form of media, whether hard copy or digital.  If you would like to use the Digital Content in more than 500,000 installations, you may purchase further RF licences as required, or otherwise contact us at contactme@aperture-pix.com to discuss a RM licence. 

d    Perpetual:  You may use the item of Digital Content with no expiration of licence term.

e    All media:  You may use the item of Digital Content in any form of media, whether hard copy or digital. 

f     Non-transferable:  You cannot transfer or assign the RF licence to another person.

g    No sublicences:  You may not sublicense the use of the Digital Content to any third party.

7.3.     We may modify any of these licence terms on an item-by-item basis for any particular item of our Digital Content, and any applicable modifications will be displayed against any item of Digital Content in our online store and/ or website. 

7.4.     If you would like to use Digital Content on a basis other than set out in paragraphs 7.2. or 7.3. above, please contact us at contactme@aperture-pix.com and enquire about RM licence terms.

7.5.     All RF licences are subject to the restricted use limitations set out in sections 8. and 10. below.

8.   Editorial Images

8.1.     Some items of our Digital Content may be marked as Editorial content.  Those items must be used only in the manner described in this section.  This applies to both RM and RF licences. 

8.2.     Editorial content is not model or property released, and must not be used for any commercial, advertising, advertorial, endorsement or merchandising purposes.  Editorial content may only be used for purposes that are designed to inform, describe, educate or entertain and not for the purpose of selling, or attempting to sell something.

9.   Moral rights & attribution

9.1.     Our photographer generally maintains her moral rights that subsist in respect of her work under Part IX of the Copyright Act 1968 (Cth) and equivalent rights in other jurisdictions worldwide.

9.2.     Where any item of our Digital Content is used for the purpose of being Editorial content (whether or not that Digital Content is marked as Editorial content on this Website), we request that you attribute our work by including the following photo credit adjacent or reasonably close to the Digital Content:

Photo Credit:  Nadja Kampfhenkel via AperturePIX

9.3.     Our photographer does not require attribution where our Digital Content is used for commercial purposes.

9.4.     For any use of our Digital Content, you must not name or credit another person as an author or creator of our Digital Content.

10.  Restricted Uses of our Digital Content

10.1.  Whichever licence type you purchase (whether RM or RF), we do not permit certain uses of our Digital Content.  Those restricted uses are set out in this section.  For the purposes of this section, “use” means to copy, reproduce, modify, edit, display, publish, or otherwise make use of our Digital Content.

10.2.  At all times, you:

a    must not use any process (including by robot, script, software or the like, whether an automated or manual process) to scrape, collect or data mine the content of this Website or our Digital Content;

b    must not use our Digital Content for the development of any software program, including for the purpose of machine learning or training an artificial intelligence system;

c    must not use any meta data, caption information, or descriptions of Digital Content used on our Website for the purpose of machine learning or training an artificial intelligence system;

d    must not use any Digital Content for any purpose that is illegal or unlawful; 

e    must not use any Digital Content in a manner that is defamatory or which inspires hatred or to promote violence or ill-will to others, or in a context which is pornographic; or

f     must not falsely represent that you are the author of any item of Digital Content, nor that you are the owner of copyright in any item of Digital Content.

10.3.  Under a RF licence, you:

a    must not alter or make any modifications, edits, or transformations of our Digital Content (or any portion thereof) to any extent that would:

i     result in the creation of a new or substantively new image; or

ii    make you an author of a new copyright work;

b    must not use Digital Content, in whole or in part, in any trademark or logo;

c    must not use any of the Digital Content as a non-fungible token (NFT) or an immutable digital asset intended for sale or other distribution;

d    must not resell, redistribute or sublicence any Digital Content to any third party (whether or not done commercially, for profit or gain), or allow any third party to do so.  This includes not using any Digital Content in a way that allows other to download, extract or redistribute content as a standalone file.  This includes that you:

i     must not use RF Licensed Digital Content for “on-demand” products or merchandise, where an image is selected by a purchaser to be used on a made-to-order product including clothing, stationery, and other physical products or items on which images are printed; and

ii    must not use RF Licensed Digital Content as a digital template intended for resale or distribution, including as a template for digital stationery, websites, greeting cards or brochures.

10.4.  If you would like to make use of our Digital Content in a manner that would otherwise not comply with clause 10.3. above, please contact us at contactme@aperture-pix.com to discuss a RM licence.

11.  Communications

11.1.  If you purchase Digital Content, you agree to receive emails from us for the purpose of facilitating your order (such as payment details), as well as marketing emails, for example, alerting when new exhibitions or Digital Content have been launched to our Website. 

11.2.  You can manage these emails from us and elect not to receive them by using the unsubscribe facility included in those emails, or contact us at contactme@aperture-pix.com to request that emails to you be discontinued.

12.  Warranties

12.1.  Nothing in these Purchase Terms limits or excludes our liability where liability cannot be limited or excluded by applicable law. 

12.2.  Otherwise, our Digital Content is provided “as is”, and to the extent permitted by law, we do make any warranty or representation concerning the suitability or fitness for purpose of the Digital Content.

12.3.  In particular, you are solely responsible for ensuring that your intended use of our Digital Content:

a    does not infringe any third-party trademarks, designs, copyright (including architecture or buildings), that may be depicted in our Digital Content; and

b    complies with any third-party terms and conditions that may apply to your particular use.

12.4.  We have made reasonable efforts to use accurate titles, keywords and captions in respect of our Digital Content, but make no warranty as to their accuracy.  Some information may be provided by third parties, including for example descriptions of locations or names of species depicted in Digital Content. While we believe that these third parties are reliable sources of this information, we cannot guarantee that this information is always accurate, up-to-date or complete.

12.5.  While every effort has been made to show as accurately as possible the colours of the photography that appear on the Website, we cannot guarantee that your computer monitor or device’s screen will display the colour of the photography accurately.

12.6.  Subject to clause 12.1., we will not be liable to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Purchase Terms, including any special, indirect or consequential loss arising under or in connection with this agreement, including any loss of profits, loss of sales or business, loss of production, loss of agreements or contracts, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill, loss of reputation, or loss of use or corruption of software, data or information.

12.7.  Subject to clause 12.6., our maximum aggregate liability to you for any loss or damage or injury arising out of or in connection with the supplied Digital Content under these Purchase Terms, including any breach by us of these Purchase Terms however arising, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to price you paid for purchasing the licence to use the Digital Content.

12.8.  Nothing in these Purchase Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.

12.9.  If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.

12.10.      You agree to indemnify us against any liabilities, costs, charges, or expenses, damages and losses (including any losses, liabilities, costs, charges or expenses (including any direct, indirect, special or consequential losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by us arising out of or in connection with:

a    your exercise of the rights granted under these Purchase Terms;

b    your breach, negligent performance or non-performance of these Purchase Terms;

c    the enforcement of these Purchase Terms;

d    any claim made against us (together with our officers, agents and employees) by a third party for death, personal injury or damage to property arising out of or in connection with purchased Digital Content to the extent that such claim arises out of the breach, including threatened breach, negligent performance or failure or delay in performance of this agreement by you, your employees, agents or subcontractors; or

e    any claim made against us for actual or alleged infringement of a third party's intellectual property rights resulting from your use of the supplied Digital Content.

13.  Termination

13.1.  We may terminate the contract with you formed by these Purchase Terms with immediate effect by giving written notice to you if you commit a material breach of any of these Purchase Terms and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of 14 calendar days after being notified in writing to do so.

13.2.  On termination under clause 13.1., you must immediately cease all use of the Digital Content, including:

a    deleting or destroying any copies of the Digital Content that you may retain; and

b    confirming in writing that you have done so.

13.3.  Termination does not affect our rights, remedies, obligations or liabilities that have accrued up to the date of termination, including the right to claim damages for any breach of these Purchase Terms that existed at or before the date of termination.

14.  General provisions

14.1.  No assignment:  You must not assign, novate, transfer, encumber, subcontract, sub-license, declare a trust over or deal in any other manner with any of the rights or obligations under these Purchase Terms.

14.2.  Relationship between parties:  These Purchase Terms do not create any relationship of employment, partnership or joint venture between us, nor any form of fiduciary obligation from either of us to the other.

14.3.  Third parties:  A person who is not a party to these Purchase Terms has no right to enforce these Purchase Terms or any rights under them.

14.4.  No waiver: Any forbearance, delay or omission to exercise any right under these Purchase Terms must not be construed as a waiver of that right in either the present or on any future occasion.

14.5.  Severability: If any provision of these Purchase Terms is invalid or unenforceable under any law, that provision is severed from these Purchase Terms, and to the maximum extent possible, the remaining provisions of these Purchase Terms remain in force.

14.6.  Entire agreement: These Purchase Terms constitutes the entirety of the agreement, and any prior representations, understandings, or arrangements that are not set out in these Purchase Terms in respect of the subject matter of these Purchase Terms are not binding and have no effect.

14.7.  Governing law & jurisdiction

a    This Agreement is governed by, and to be interpreted according to, the laws of Western Australia.

b    The parties submit to the exclusive jurisdiction of the courts of Western Australia and the Commonwealth of Australia in respect of any dispute arising in respect of this Agreement.

Date of last revision: 14 September 2023