Please read the following terms and conditions (“Ts&Cs”) carefully before you purchase services and/or goods from, access, browse or continue to use (“Access”) the www.billshapter.com website (“Website”), as when you Access the Website you signify that you (i) acknowledge and accept these Ts&Cs and (ii) agree that these Ts&Cs supersede and replace any other Ts&Cs previously agreed between you and billshapter.com photography (“BSP”). Any variation of these Ts&Cs must be in writing and signed by BSP. These Ts&Cs are governed by the laws of New South Wales, Australia, and shall be legally binding on you, BSP and any respective successors and/or assigns.
1. Website Use
1.1 All the material displayed or featured on this Website including but not limited to photographs, graphics, text, logos, trade marks, general design, illustrations, audio clips and video clips (“Content”) remains the property of BSP, is not in the public domain and may not be downloaded, saved as a digital file, reproduced, printed, copied, projected, manipulated, distributed, transmitted, republished, uploaded, modified, archived, sampled, posted or used in any way (“Copy”), in whole or in part, without the express prior written permission of BSP. The Content is protected by trade dress, copyright, moral rights, trade mark and other laws relating to intellectual property rights. If you Copy any of the Content on this Website without specific authorisation you will be pursued to the fullest extent of the law.
1.2 Without prejudice to the foregoing Clause 1.1, you may download any of the images on the Website page entitled ‘wallpaper’ (“Wallpaper Image”) for use as a screen background to the graphical user interface on your own personal computer (“Desktop Background”). You must not Copy a Wallpaper Image for any purpose other than for use as a Desktop Background. Any commercial use of a Wallpaper Image is strictly prohibited and in breach of these Ts&Cs.
1.3 BSP has attempted to ensure that the Content of its Website is as accurate as possible. However, BSP makes no warranty (express or implied) or guarantee concerning the accuracy or reliability of its Content and does not accept any liability for any errors or omissions.
1.4 Without prejudice to the foregoing Clause 1.3 and subject to Clause 8.5, all photographs featured on the Website are rights protected, meaning that BSP controls the rights to those photographs so as to avoid conflict between competing clients.
1.5 Whilst BSP endeavours to make its Website available for twenty-four (24) hours every day, BSP will not be liable if for any reason the Website is unavailable at any time or for any period. Access to the Website may be suspended temporarily or permanently and without notice.
1.6 Although BSP may put in place security measures for your privacy and protection, BSP does not guarantee the absolute security of your personal information and shall not be liable for any damage to or viruses that may affect any computer equipment, software, data or other property as a result of your Access to the Website.
1.7 You agree not to submit any material or information to BSP or its Website that is in any way in breach of any statute, regulation or by-law of any jurisdiction or which may be defamatory, misleading, derogatory, obscene or indecent.
1.8 Whilst the Website may contain links to other websites, BSP is not responsible for the practices and privacy policies of the owners and operators of those other websites.
2. Purchasing Prints
2.1 Only the photographs displayed in the ‘galleries’ section of the Website (“Photograph”) may be ordered as a reproduction print (“Print”) or as a mounted and framed Print (“Framed Print”).
2.2 When submitting to BSP a completed order form via the Website specifying your selected Print(s) or Framed Print(s) (“Print Order”), you agree that you alone are responsible for giving the correct information on your Print Order and that BSP is not liable for any errors that may arise from any incorrect information you provide. If you realise that you have made a mistake with your Print Order, please contact BSP immediately.
2.3 Upon receipt of your Print Order, BSP will send you a payment request via email specifying the total cost of customising your Print Order, including postal insurance, delivery costs to the address detailed in your Print Order and any relevant taxes (“Payment Request”). Unless otherwise expressly agreed by BSP in writing, BSP will only customise your Print Order and arrange delivery of your Print(s) or Framed Print(s) once you have paid your Payment Request in full to BSP in cleared funds. Since a Payment Request is only valid for fourteen (14) days, you must pay your Payment Request within fourteen (14) days from its issue date. Once BSP has customised your Print Order, BSP will generate a tax receipt for sending to you along with your Print(s) or Framed Print(s).
2.4 All Print(s) and Framed Print(s) are sold strictly for personal use only. You agree not to Copy your Print(s) or Framed Print(s) in any way.
2.5 Since copyright for the original Photograph reproduced in your Print remains with BSP, you agree not to sever, remove, cover or in any way disguise the words and/or signature of ‘Bill Shapter’ and/or ‘billshapter.com’ from your Print or Framed Print.
2.6 The dimensions indicated on the Website for Framed Prints are approximate and our experienced framers will use judgment when customising your Print Order. The size of your final Framed Print may vary slightly when framed from the image shown on the Website.
2.7 Irrespective of any materials or instructions relating to framing that BSP may provide, BSP accepts no responsibility for any damage to a person or property arising from the hanging and display of your Framed Print.
2.8 Pursuant to Clause 5.9, whilst BSP will normally arrange for the delivery of your Print(s) or Framed Print(s) within six (6) to eight (8) weeks following BSP receiving payment in full of your Payment Request, this timeframe is an estimate only and BSP will not be liable for any delay in delivering within it or at all.
3. Licences
3.1 Only registered businesses and/or companies intending to use Photographs for the purpose of advertising or marketing goods and/or services may purchase a licence to use and Copy those Photographs (“Licence”).
3.2 When submitting to BSP a completed Licence order form via the Website specifying your selected Photographs (“Licence Order”), you agree that you alone are responsible for giving the correct information on your Licence Order and that BSP is not liable for any errors that may arise from any incorrect information you provide. If you realise that you have made a mistake with your Licence Order, please contact BSP immediately.
3.3 Unless otherwise expressly agreed in writing by BSP prior to the commencement of the Licence:
3.3.1 your Licence shall be for a period of twelve (12) months only, commencing on the date when the Photographs that are the subject of the Licence (“Licensed Photographs”) are first supplied to you by BSP;
3.3.2 you agree to only Copy your Licensed Photographs within the country specified in the address section of your Licence Order;
3.3.3 you must only Copy your Licensed Photographs for the purpose specified in the usage section of your Licence Order (“Purpose”) and not for display as a Print or for use in self-promotional merchandising products such as calendars, postcards, cards, posters, puzzles, homewares, clothing and books. You must not Copy your Licensed Photographs in ways that are defamatory, misleading, derogatory, obscene, indecent or that infringe the rights of people or property featured in the Licensed Photographs;
3.3.4 title to all Photographs remain the property of BSP, so you agree that when your Licence expires you will immediately return all Licensed Photographs to BSP and destroy any Licensed Photographs that you have stored or captured for the Purpose of your Licence including in any form of electronic medium (“Store”). You agree not to Copy or Store any Licensed Photographs after the expiry of your Licence;
3.3.5 you agree not to alter, manipulate, modify or archive any Licensed Photographs;
3.3.6 you agree that, since the copyright in every Photograph is owned and retained by BSP at all times throughout the world, you will publish a credit line containing the name ‘billshapter.com’ along with a copyright notice (‘©’) within a reasonable proximity of every Copy you make of a Licensed Photograph. If you fail to provide a credit line for any Licensed Photograph in this way you agree to pay a penalty fee to BSP equal to one hundred percent (100%) of the fee originally charged for that Licensed Photograph, as detailed on the invoice relevant to the Licence (“Licence Invoice”);
3.3.7 pursuant to Clause 3.3.6, you agree to supply BSP with a sample of every Copy you make of a Licensed Photograph;
3.3.8 even where BSP grants an exclusive licence, BSP retains the right to use Licensed Photographs in any manner and in any part of the world for the purpose of advertising and promoting BSP;
3.3.9 you agree not to transfer your Licence (including to any assignee, sublicencee or successor in title). You are only to Copy Licensed Photographs for the Purpose of your creative works; and
3.3.10 you agree to indemnify BSP against any losses, expenses, damages or costs incurred by BSP as a result of your making a Copy of any Licensed Photograph.
3.4 Time for payment of Licence Invoices shall be of the essence and you agree to pay all Licence Invoices within fourteen (14) days of issue. BSP reserves the right to suspend your Licence if you do not pay your Licence Invoice within this timeframe and to charge you late payment fees of three percent (3%), which shall accumulate and be added onto the amount owing on a daily basis, on any amounts that remain unpaid after the due date.
4. Payment
4.1 You may pay your Payment Request or Licence Invoice (“BSP Invoice”) to BSP via direct deposit, postal order, cheque, PayPal or any other method BSP agrees to in writing. However, receipt by BSP of any form of payment shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
4.2 Since all BSP Invoices are issued in Australian dollars, you agree to ensure that your payment is received in full by BSP in Australian dollars.
4.3 If for any reason the costs of BSP customising your Print Order or Licence Order changes before you pay your Payment Request or Licence Invoice, for example due to changes in taxes or the fees charged by Australia Post, BSP will contact you and ask you to confirm that you wish to proceed at the amended price.
4.4 Where Goods & Services Tax (“GST”) is applicable, it will be applied at a rate of ten percent (10%), will be clearly itemised on your BSP Invoice and, as part of the total invoiced amount, is payable along with the fees detailed on your BSP Licence.
4.5 Whilst all BSP Invoices list and cost the items requested via your Print Order or Licence Order separately, this does not imply that an individual item can be removed from the BSP Invoice without affecting the cost of other items.
4.6 BSP is unable to offer refunds once your Print Order has been customised or your Licensed Photographs have first been supplied to you. All BSP Invoices will display a small copy of the Photographs requested in your Print Order or Licence Order to ensure that an incorrect Photograph is not supplied to you.
4.7 You agree that until BSP receives payment of your BSP Invoice in full:
(a) BSP may give you notice in writing to return your Print, Framed Print or Licensed Photograph (“Goods”), or any part of them, to BSP. Upon such notice your right to obtain ownership or any other interest in the Goods shall cease;
(b) BSP may enter upon and into land and premises you own, occupy or use, or any premises as your invitee, where the Goods are situated and take possession of the Goods;
(c) you are only a bailee of the Goods and you hold any proceeds generated should you sell, dispose of or Copy the Goods on trust for BSP;
(d) you will not charge the Goods in any way nor grant nor otherwise give any interest in the Goods;
(e) if the Goods are converted or you Copy the Goods into other products, BSP will be the owner of the end products; and
(f) BSP can issue proceedings to recover any expenses due for any Goods sold to you, notwithstanding that ownership of the Goods may not have passed to you.
5. Delivery
5.1 Whilst delivery of your Goods are subject to the performance of Australia Post, international postal services and BSP’s web-hosting partners, BSP makes no warranties in relation to the performance of Australia Post, international postal services or BSP’s web-hosting partners.
5.2 BSP will, on your behalf, arrange for your Goods to be insured with Australia Post up until delivery is accepted at the delivery address specified in your Print Order or Licence Order according to the terms and conditions of Australia Post at [link]. The cost of this insurance is payable by you and will be itemised on your BSP Invoice.
5.3 You will be liable for any import duty fees or taxes arising from the delivery of your Goods, including where that delivery involves the transfer or delivery of computer files via email or over the internet. In the event that you fail to pay all the relevant import duties and local taxes at the time of import, you authorise BSP to charge you with any costs, over and above the freight charges, which may be incurred by BSP in relation to your failure.
5.4 You agree to make any arrangements necessary to take delivery of your Goods. In the event that you are unable to take delivery of your Goods as arranged then BSP shall be entitled to charge a reasonable fee for redelivery.
5.5 BSP shall not be liable for any loss or damage whatsoever due to failure by BSP to deliver any of your Goods, promptly or at all. Any failure by BSP to deliver your Goods shall not entitle either party to treat these Ts&Cs as repudiated.
5.6 Within three (3) days of delivery of your Goods (time being of the essence), you agree to inspect your Goods and notify BSP of any alleged defect, shortage or oversupply in quantity, damage or failure to comply with any instructions (“Defect”). You agree to then afford BSP an opportunity to inspect the Defect in your Goods within a reasonable time following their delivery. If you fail to comply with this clause, your Goods shall be presumed to be free from any Defect. If BSP agrees in writing that you are entitled to reject any Goods with a Defect, BSP’s liability for such is limited to either (at BSP’s discretion) replacing the Goods or repairing the Goods. BSP shall not be liable for any delays or postage involved in either replacing or repairing the Goods or in properly assessing your claim. BSP shall also not be liable for any Defects caused or partly caused by or arising through:
(a) failure on your part to properly maintain any Goods;
(b) failure on your part to follow any instructions or guidelines provided by BSP;
(c) the continued use of any Goods after any Defect becomes apparent or would have become apparent to a reasonably prudent operator or user;
(d) your attempt to modify or misuse the Goods; or
(e) fair wear and tear, any accident or act of God.
5.7 As soon as your Goods are delivered, you are responsible for their care and conservation, including ensuring that the appropriate heating and lighting conditions are provided.
5.8 You warrant to BSP that you are residing in and Access the Website from the country specified in the address section of your Print Order or Licence Order.
5.9 BSP shall use commercially reasonable efforts to meet all schedules and requested delivery time frames for the delivery of any Goods (“Deadlines”). Such Deadlines in all cases represent estimates or targets only, and should never be accepted either explicitly or implied as a guarantee of delivery on, or prior to, those Deadlines. You therefore agree not to hold BSP liable for any losses associated with delays to Deadlines, howsoever caused.
6. Liability
6.1 Whilst every effort has been made to accurately describe all the goods on this Website, our works of art are individually created so texture and colour may vary within a reproduction. The colours pictured on screen will depend on your computer's monitor settings. Consequently there may be some slight variance between the Goods you receive and the image on your screen.
6.2 Without prejudice to any other remedies BSP may have, if you are in breach of any obligation (including those relating to payment) at any time, BSP may suspend or terminate any of BSP’s obligations under these Ts&Cs, including any supply of Goods to you. You agree to fully indemnify BSP against all liabilities, claims, expenses, demands, actions, costs, damages and losses arising out of any breach by you of these Ts&Cs. BSP will not be liable to you for any loss or damage you suffer because BSP has exercised its rights under this clause.
6.3 You hereby disclaim any right to rescind or cancel any contract with BSP, to sue for damages, or to claim restitution arising out of any misrepresentation made to you by BSP.
6.4 BSP shall, to the extent permitted by law, not be liable for any direct, indirect or consequential loss, damage, cost or injury arising out of, or in connection with, any information supplied to or accessed by you, the provision of any Goods or a breach by BSP of these Ts&Cs. ‘Consequential loss’ shall include, but not be limited to, loss of profit or goodwill and payment made or due to any third party. Should BSP breach these Ts&Cs, your remedies shall be limited to damages that under no circumstances shall exceed the amount specified in your BSP Invoice.
6.5 You agree to give BSP not less than fourteen (14) days prior written notice of any proposed change of ownership of your company or any change in your name and/or details (including but not limited to, changes to your postal address, email address, contact number, facsimile number or business practice). You shall be liable for any loss incurred by BSP as a result of your failure to comply with this clause.
7. Termination and Cancellation
7.1 BSP reserves the right to withdraw or terminate its services in relation to any Print Order, Licence Order or Goods upon giving you written notice (“Termination”). BSP shall not be liable for any loss or damage whatsoever arising from such Termination.
7.2 You will be deemed to have cancelled BSP’s services in relation to any Print Order, Licence Order or Goods (“Cancellation”) if you:
(a) breach these Ts&Cs or any separate contractual agreement with BSP;
(b) are unable to supply information required by BSP to customise your Goods;
(c) assign the benefit or burden of any Goods without BSP’s prior written consent; or
(d) go into voluntary or involuntary liquidation, are declared insolvent either in bankruptcy proceedings or other legal proceedings, have reached an agreement with creditors due to your failure or inability to pay your debts as they fall due, or have a receiver appointed over the whole or part of your business.
7.3 Whether Terminated or Cancelled, you will be liable to pay for any work that BSP has already commenced in relation to customising your Goods. The minimum Termination/Cancellation fee will be twenty-five percent (25%) of your BSP Invoice, payable immediately.
8. General Matters
8.1. BSP will keep confidential and will not disclose to any third parties or make use of material or information communicated by you to BSP in confidence for the purposes of customising any Goods for you, save as may be reasonably necessary to enable BSP to carry out that work.
8.2 BSP reserves the right to make changes to the Website and these Ts&Cs at any time. If any provision in these Ts&Cs is or becomes invalid, void, illegal or unenforceable then it shall, to the extent required, be severed and shall be ineffective and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
8.3 The failure by BSP to enforce any provision of these Ts&Cs shall not be treated as a waiver of that provision, nor shall it affect BSP’s right to subsequently enforce that provision.
8.4 Notices will be deemed to have been served (if delivered by hand) upon delivery or (if sent by post) two (2) business days after being posted or (if transmitted by facsimile, email or over the internet) when dispatched.
8.5 Unless otherwise stated, Photographs featuring people and property are not model or property released and BSP will not be held responsible for individual rights which have been infringed when you Copy a Photograph where BSP has made no representation as to the release status of that Photograph.
8.6 BSP may license or sub-contract all or any part of its rights and obligations in relation to customising any Print Order, Licence Order or Goods for you without your consent.
© 2009 Bill Shapter
