TERMS & CONDITIONS
These terms and conditions are designed to make www.photowonder.co.nz a safe and workable place for our Users.
1. ACCEPTANCE OF TERMS AND CONDITIONS:
We agree to supply you with the Goods which are the subject of the Purchase Order made by you with us. You agree that you are bound by any Purchase Order made through the Portal on the Site.
These terms and conditions are the terms on which PhotoWonder New Zealand Limited (“PWNZ”) offers you access to the Services contained on the Portal and the Site and the terms and conditions which attach to any Purchase Order you have with us. By accessing the Site and logging on to the Portal as a User of the Services and/or by making a Purchase Order you agree to be bound by these terms and conditions and you agree to be bound by these terms and conditions as well as any other guidelines, rules, additional terms referenced herein including any amendments made to them from time to time. Each time you make a Purchase Order or access the Site and/or Portal you confirm that you have read and understood these terms and conditions.
By accepting these terms and conditions you consent to us sending to you occasional PWNZ email correspondence which may include details of promotions, a newsletter or other correspondence related to any Services provided by PWNZ now or in the future. If you do not wish to receive these emails, please feel free to unsubscribe via the unsubscribe link provided in the email, or reply to them with unsubscribe in the header (where applicable).
2. FUTURE AMENDMENT OF TERMS AND CONDITIONS:
PWNZ may amend these conditions in whole or in part from time to time in our sole discretion and we recommend that you check them on a regular basis. Amendments will be effective immediately upon posting of the amended terms and conditions on the Site or on new terms being accepted. You are responsible for ensuring you are familiar with the latest version of the terms and conditions. The terms and conditions applicable to any Purchase Order shall be those terms and conditions posted on the Site on the date upon which the Purchase Order is made. You agree to check the terms and conditions each time you use the Services and will be taken as accepting the then current terms and conditions each time you choose to use the Services.
In these terms and conditions, the following words have the meanings set out as follows:
“Access Code” means a random password given by either PWNZ or the Institution so that the User may access the Portal.
“Close Family Members” means the spouse or domestic partner of a User and any parent or sibling of the User and/or any spouse or domestic partner of the User.
“Consent” means your consent, express or implied, to the Primary Subject taking part in the Shoot and any resulting photographs or images being displayed on the Site as otherwise provided herein.
“Goods” means any physical item containing a photograph and/or image of the Primary Subject that is contained in any Purchase Order.
“Institution” means pre-school, kindergarten, school, sports club or any incorporated or unincorporated club, society, group or other organisation including but not limited to those organisations who provide services related to education, recreation or community development.
“Password” means the password required to sign in to the Site as a Registered User.
“Portal” means the access-code protected event album located on the Site containing images from the Shoot.
“Primary Subject” means the person or persons whoare the subject of the Shoot which shall primarily be the child of the User.
“Purchase Order” means your purchase of Goods from time to time which are made via the Portal on the Site.
“Registered User” means any User who has registered on the Site and has provided certain personal information to PWNZ for the purposes of making a Purchase Order. “Shoot” means the particular photography shoot that PWNZ arranges with any Institution.
“User” means a userof the Site or Portal who has been provided with an Access Code directly or indirectly by either PWNZ or the Institution to enter the Portal and access the Services and includes a Registered User. For the avoidance of doubt a User shall be the primary caregiver of the Primary Subject or any other person as PWNZ from time to time determines.
“Services” means any one or more of the offered services by PWNZ from time to time, including secure access to the Portal to view and purchase photographs and images of the Primary Subject captured by contractors or employees of PWNZ at the Shoot.
“Site” means the website known as “www.photowonder.co.nz” or any website containing the letters “photowonder” as may be presently registered by PWNZ as a domain name at the date of this Agreement or may be registered by PWNZ from time to time.
“we”, “us” and “our” are a reference to PWNZ.
“you” and “your” are a reference to you.
4. PWNZ’s SERVICES
PWNZ works in cooperation with Institutions to facilitate photo shoots and/or photo based fundraisers with those Institutions, focusing on sports, sports team, group and event photography. PWNZ photographers and contracted photographers capture a range of individual shots per Primary Subject. These photos are then sent to PWNZ’s production team to create a variety of individual and group/team products which are uploaded to the Portal and can be purchased by a User and Close Family Members of the User via the Portal. The Portal is protected by Access Code and a User is provided with access to the Portal to view and purchase photographs displayed within the Portal. The Institution will also have access to the Portal and you agree that, that Institution may use photographs from the Shoot in its marketing materials.
You acknowledge that in most cases the Institution receives a portion of the revenue raised through the sale of the photographs as a fundraiser to that Institution.
4.1 Use of the Services
You agree and acknowledge that the Institution is responsible for the obtaining of Consent and confirm that we have no liability should the Institution either have failed to obtain Consent or communicate the revocation of your Consent to us. You further confirm that you have not revoked Consent and agree and confirm that photographs or images of the Primary Subject shall be available for the viewing and purchase by any other person or persons who have access to the Portal.
As a User you may use the Site and Portal to view and purchase photographs or images of the Primary Subject provided that you agree to and strictly adhere to the following:
a. you must not share the Access Code, your Password or the -link to the Portal with any other person other than Close Family Members
b. you will procure and ensure that Close Family Members are bound to keep the Access Code, your Password or link to the Portal confidential.
c. you agree not to purchase photographs or images which do not include the Primary Subject;
d. you agree and understand that the Primary Subject may be part of a team or group and thus may be part of a team or group product, which can be purchased by other person or persons who have access to the Portal.
e. you understand that photographs or images are for sale for a period determined by PWNZ from time to time following the Shoot, unless otherwise specified in Shoot marketing material. PWNZ will archive photographs from the Shoot for a period of up to 12 months thereafter, wherein after all photographs from a given Shoot may be destroyed as PWNZ from time to time determines.
f. You agree that you have no propriety interest in any photographs or images of the Primary Subject and all copyright in respect of any photographs or images vests in and is retained by PWNZ.
g. You agree that all photographs or images of the Primary Subject accessed via the Portal of Site or any Goods purchased containing such photographs or images only allows you the use of that photograph or image for your personal use only and cannot be used for any commercial use whatsoever unless PWNZ first gives their consent in writing and PWNZ can attach whatever conditions they see fit to the giving of such consent. You agree that PWNZ may use your email and/or telephone number provided to PWNZ to communicate with you.
h. Should PWNZ wish to use photographs and images of the Primary Subject from the Shoot in marketing materials we will seek the User’s permission prior to use. If there are specific images or photographs that you do not want displayed then please contact us.
4.2 At Your Own Risk:
You expressly understand and agree that:
• PWNZ makes no warranties and limits any warranties to the maximum extent possible at law that:
o the Service will meet your requirements;
o the quality of the Goods, Services, information or other material obtained by you through the Service will meet your expectations;
• Any material downloaded or otherwise obtained through the use of the Services is assessed at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material.
• We will take reasonable care to ensure that information provided through the Services is accurate, reliable, adequate, complete and current but we cannot and do not represent or warrant that this will always be the case.• Risk passes to you upon PWNZ dispatching any Goods and without limiting this clause PWNZ shall not be responsible for Goods being lost, stolen or not delivered to you for any reason or any damage or deterioration in such Goods resulting from the delivery of the Goods.
• Without limitation to the above where we decide in our sole discretion that the goods have been damaged other than through delivery and that your expectations as to the quality of the Goods are reasonable, we may opt to either provide replacements for the Goods or return the purchase price for the goods to you, but nothing in this clause creates an obligation for us to do so.
We are not responsible for:
• Any information that does not originate directly from us, any links we provide to third party sites or information accessible from those sites or any loss or damage arising from your use of the Services;
• Ensuring that the information that you access or make available through using the Services will be private or secure or free from viruses or other harmful things;
• any duties, tax, levies or other charges payable to any local or governmental authority except for the obligation to pay goods and services tax on the Purchase Order.
4.3 PWNZ ’s Disclaimer:
You expressly acknowledge and agree that:
a. Your use of the Services is at your risk and no responsibility for risk is taken by PWNZ. The Site, Portal and Services are provided only on an “as is” and “as available” basis. To the maximum extent permitted by law, PWNZ disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, and non-infringement;
b. PWNZ does not warrant that:
i) the Services will be uninterrupted, timely, secure, or error free, or
ii) any information provided on the Site is correct, error-free or reliable;
c. Where PWNZ permits advertising on the Site, responsibility for the content of advertisements appearing on the Site (including hyperlinks to advertisers’ own websites) rests solely with the advertisers. The fact that an advertisement is placed on the Site does not constitute a recommendation or endorsement of the advertised product or service.
4.4 Limitation of Liability:
To the maximum extent permitted by law, any and all liability of PWNZ which arises in connection with these terms and conditions, or in connection with the Services, Goods, the Site and Portal, another User’s acts or omissions, or your use of or inability to use, the Services or the Site and Portal is excluded. Without limiting this exclusion, the maximum amount on PWNZ’s obligations is equal to the amount paid for the Purchase Order. Furthermore; PWNZ ‘s liability is excluded in respect of any incidental, punitive, and consequential damages, whether direct or indirect, including, without limitation, loss of data, business interruption, loss of business loss of profits or anticipated savings, general and special damages, and consequential or incidental loss.
You agree to indemnify PWNZ and keep PWNZ indemnified PWNZ at all times hereafter from and against all actions, claims, costs (including all solicitor/client legal costs and expenses) losses, damages, liabilities or demands suffered or incurred by PWNZ arising out of or in connection with your failure to comply with these terms and conditions.
4.6 Breach of Terms and Conditions by User:
If you breach these terms and conditions or where PWNZ considers it appropriate, PWNZ may without warning, take action to suspend or terminate you as a User of the Portal and/or Site, or limit your activities on the Portal or Site or warn other Users of your actions. PWNZ may exercise any other rights and remedies available to it under these terms and conditions or otherwise available.
5. BECOMING A PWNZ REGISTERED USER
If PWNZ approaches an Institution to arrange a Shoot, you acknowledge that it is the Institution’s responsibility to obtain your Consent. We will use reasonable endeavours through our arrangements with the Institutions to ensure that the Institutions do make arrangements to obtain your Consent but do not make any warranties or guarantees in this regard. The Institutions will either send you a consent form for your Consent or may send notice that if you have objections to the giving of your Consent then you should make your objections known to the Institution prior to the Shoot. If the Institution notifies you that you must make your objections known before the Shoot then failure to notify the Institution will be deemed as the giving of your Consent. You acknowledge that any Consent given is also given to PWNZ and PWNZ may act and is entitled to rely on Consent obtained by the Institution or any representation by the Institution express or implied that Consent has been given. You can also provide your Consent on the Site as directed by the notification received from the Institution. By communicating your Consent to the Institution you warrant that you form a legally binding contract, you are authorised to give the Consent and you acknowledge that by confirming your Consent you are contractually bound by these terms and conditions.
In order to make a Purchase Order you must first become a Registered User. Upon registration you will be asked to provide certain contact, payment and other information. Without limiting any other provision in these terms and conditions you warrant that any information provided in becoming a Registered User is accurate, reliable, adequate, complete and current. This information is used to contact you when necessary and to send you the Goods, information about our Services on our Site and promotional material.
5.2 Accurate User Information:
You warrant that the information provided when logging on to the Portal was and remains complete and accurate. You must maintain and update your personal information held by PWNZ to ensure it is current at all times. You must not log on to the Portal using multiple identities or using another person’s names and personal details (whether false or not). PWNZ may phone or mail you to verify these details.
5.3 Termination as a User:
PWNZ reserves the right to decline to register or to terminate you as a User without providing you with any warning or entering into discussions with you. This right, for the avoidance of doubt, also extends to any or all Close Family Members. By way of example and not limitation, PWNZ may terminate you as a User if a serious complaint is received about you from another User or Users, you breach these terms and conditions (regardless of whether you were aware that you were breaching these terms and conditions at the time of the breach), where information provided in the Consent was misleading or inaccurate or PWNZ, at our sole discretion, deem your behaviour to be unacceptable.
5.4 Security of your login information:
You are responsible for keeping your login information, including your email address and Password, secret and secure. Without limiting the foregoing, you agree:
a. not to permit any other person to access the Portal other than Close Family Members; and
b. not to disclose your Password, Access Code or any information to any other person other than Close Family Members, that may allow them to use access the Portal, and to ensure the Close Family Members are under the same obligation.
c. you agree to indemnify PWNZ in respect of any unauthorised use of your password or account or any other breach of security or any liability incurred by PWNZ resulting from such unauthorised use and the User and Close Family Member shall ensure each of them exits from the Portal at the end of each session.
(a) All communications made through the Site or Portal shall be made in good faith.
(b) You must not attempt to interfere with or harm the Site, Portal or Services, or any network, or system underlying or connected to them.
(c) You may not modify, adapt, translate or reverse engineer any portion of the Site , Portal and or the Service.
(d) You may not collect any information about other Users (including usernames and/or email address) for any purpose.
(e) You must not create a log on to the Portal by automated means or under false or fraudulent pretences.
(f) You must not create or transmit unwanted electronic communications such as “spam” to other Users or PWNZ or otherwise interfere with other User’s enjoyment of the Site.
(g) You must not submit false or misleading information to the Site or Portal.
(h) You must keep us protected against any legal action taken against us and pay us any costs (including solicitor/client costs), losses or expenses we incur in connection with your use of the Services
(i) You must not use a robot, spider, scraper or other automated means to access the Site or information feature on it for any purpose.
7. NO GUARANTEES OR ENDORSEMENTS OF SITES OR SERVICES LINKED TO THE SITE OR THAT THE SITE LINKS TO
Links to third party websites are provided for convenience only. Links should not be construed as any endorsement, approval, recommendation or preference by us of the owners or operators of the sites, or of any information, products or services referred to on those other sites or otherwise posted on the Site, unless specifically stated.
PWNZ is not responsible for the copyright compliance of any linked site. PWNZ will not be liable for any damages or loss arising in any way out of or in connection with or incidental to any information or third party service provided by any third party.
8. ENDING, CHANGING OR SUSPENDING ANY SERVICES
PWNZ may at any time and without notice:
• Change the format and content of this Site, Portal and/or products or Services offered on the Site or Portal;
• End (stop providing), suspend or restrict your access to any Service if you do not meet any responsibility you have to us; or
• Terminate or suspend the operation of the Site and/or the Services (in whole or in part) temporarily, if we think it reasonable or necessary (e.g. for support or maintenance work or to update content), permanently if we decide to stop providing a particular Service.
This will not affect any rights and responsibilities which are intended to continue, or come into force after that date or event.
9. PAYMENT FOR GOODS
We will make various payment systems available to you in respect of a Purchase Order. You agree to be bound by any payment instructions we make known on our Site or otherwise and will be bound by any general terms and conditions of the administrator of the relevant payment system. You expressly acknowledge that we are not obliged to act on any Purchase Order unless and until we receive full payment for the same. We make no warranty as to the security of any payment system contained on our Site or in the Portal and any transaction undertaken therein is solely at your risk.
10. GENERAL MATTERS
10.1 System Integrity:
PWNZ will use its reasonable endeavours to ensure that the Site, Portal and Services, are always available, subject to any downtime required for maintenance. PWNZ will endeavour to provide advance notice of planned maintenance; However, PWNZ takes no responsibility for any system unavailability, or for any loss that is incurred as a result of the Site, Portal or Services being unavailable. Further, PWNZ assumes no responsibility for the corruption of any data or information held by PWNZ.
10.2 No Waiver:
If we do not exercise or enforce any right available to us under these terms and conditions, it does not constitute a waiver of those rights.
10.3 Partial Invalidity:
If any provision of these terms and conditions becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining terms and conditions, which shall continue in full force and effect.
10.4 Governing Law and Currency:
These terms and conditions are governed by the laws of New Zealand and any amount payable are in New Zealand Dollars.
10.5 Intellectual Property Rights:
PWNZ owns all proprietary and intellectual property rights in the Site and Portal including any photographs or images of the Primary Subject and any photographs or images displayed on the Portal from time to time. PWNZ also owns all proprietary and intellectual property rights in any photographs, images, text, graphics, logos, icons and sound recordings displayed on the Site and the software and other material underlying and forming part of the Services and the Site and Portal. You may not without our prior written permission, in any form or by any means:
a. Copy, distribute, display, publish or create derivative works from any part of the Site or Portal; or
b. Commercialise, copy, or on-sell any information, or items obtained from any part of this Site or the Portal.
c. Any rights not expressly granted herein are reserved. You agree not to breach any trade mark, copyright, patent, design or other rights in relation to all trademarks, information, images, logos and other intellectual property included in the Site and Portal. No logo, graphic or image from the Site or Portal may be copied or retransmitted unless expressly permitted in writing by PWNZ.
d. You agree not to download, copy, transmit or otherwise replicate any of the information on this Site or the Portal unless it relates to photographs or images of the Primary Subject and we otherwise expressly permit this on the Site or Portal
10.6 Entire agreement:
These terms and conditions supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement, between the parties, relating to the subject matter of these terms and conditions.
The Privacy Act 1993 applies to the collection, use, storage and disclosure of information that you provide to us when accessing this Site and the Portal.
Any information that you provide to PWNZ when accessing this Site or the Portal is collected and stored by PWNZ. PWNZ will only collect personal information which is necessary for our business functions and activities, or to comply with legal or regulatory obligations.
PWNZ collects, uses and discloses personal information about you for a range or purposes through your use of the Services and the Site and Portal, including:
(a) your registration details;
(b) information relating to your use of the Site and the content you access.
You may contact us to request access to any information that we hold about you and you may also ask us to correct that information if you consider it to be inaccurate.
PWNZ welcomes any questions and comments about privacy. Please send email to firstname.lastname@example.org for further information.