Terms Of Use
This Terms of Service Agreement (the "Agreement") is made by and between Nulab Professional Imaging and You, the user relating to the services available at the Site (defined below). You are referred to herein as "You" or the "User" or "Member."
Nulab.com.au, nushots.com.au and picpress.com.au ("Nulab") are websites owned, hosted and/or operated by Nulab Professional Imaging. ("Nulab") Your clicking "I Agree", or your use of any of these websites (individually and collectively the "Site") means you agree to the following terms of service applicable to users (the "Terms"), as well as the general 'Terms of Use' posted on the Site. If you do not agree with these Terms you should leave this Site. Please check these Terms regularly for changes. Your continued use of the Site following the posting of changes will mean you accept these changes.
1. Provision of Services. Subject to the terms and conditions of this Agreement, Nulab will offer online services such as print and reprint order processing and other services that may be offered by Nulab from time to time. Nulab shall be responsible for processing and shipping all orders directly to customers in accordance with the terms of the order and Nulab guidelines. Nulab shall notify the User of any returns, refunds, or fee disputes by any customer.
2. Fees and Compensation. When ordering prints or other products, Nulab will require users to pay, in advance, by credit card, the applicable prices for the products shipping and handling as set forth on the applicable Site.
3. License and Ownership. Nulab shall not gain any ownership interest in the Users images, except that the User grants Nulab a non-exclusive, royalty-free, worldwide, perpetual license, with the right to reproduce, distribute, transmit, and publicly display any materials and other information that User submits to the Site (the "Submitted Materials") for the purposes of display in the users albums or galleries on the Site and or production of personalised photo finished products or reprints ordered by the User and Users customers, members, or their guests. Nulab disclaims ownership of Submitted Materials.
4. Access and Use of the Site
a. Equipment and Connections. You are responsible for providing all equipment necessary to access the internet and the Site. Access to the Site requires a Web browser that meets the operational needs of the Site. Nulab does not guarantee that the Site will be compatible with Your equipment or software, and You are responsible for assuring such compatibility.
b. Availability of the Site. The Site is generally available 24 hours a day, 7 days a week. However, Nulab retains the right to make the Site unavailable from time to time for any reason, including scheduled and unscheduled maintenance, as well as equipment or software failures. You agree that Nulab shall not be liable for any damages arising from any interruption, suspension or termination of the Site.
c. Use of Passwords. Access to and use of the Site is through a combination of a User Name and Password. No member or other person is permitted to access the Site using the User Names and Passwords of any other User, provided that members may permit use of their User name and Password by their employees for purposes of using the Site on member's behalf. You are responsible for all activity on the site that occurs under your User Name and Password, regardless of whether you have authorised the same.
d. Information Posted on the Site. Users are solely responsible for information which they upload to or posts on the Site, including the Submitted Materials. Nulab does not regularly review any material uploaded to or posted on the Site by Users or third parties. The User agrees that Nulab has no obligation to monitor content on the Site, or links to other web sites contained on the Site, and expressly disclaims any responsibility to filter any such content. However, Nulab may take any action with respect to such content or information as it deems necessary or appropriate in its sole discretion if Nulab believes such information may give rise to liability to Nulab or other parties or interfere with or impair Nulab's relationship with any customer, member, user or other party.
e. Backup of Submitted Materials. Images and content submitted to Nulab are only stored until the completion of the work ordered. No materials are backed up on behalf of members or Users.
6. Representations and Warranties. The User represents and warrants that: (a) Members have the right and unrestricted ability to grant the licenses to Nulab as set forth in Sections 3, and (b) the Submitted Materials will not infringe upon any copyright, right of publicity or privacy, or any other proprietary rights of any person, whether contractual, statutory or common law. The User agrees that neither Nulab nor any of its directors, officers, employees, partners, contractors, service provider, or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use, the Submitted Materials. The User further acknowledges that he or she is legally responsible for any challenges made by any third party regarding copyright, right of publicity or privacy, or any other proprietary right in the Submitted Materials.
7. Indemnification. The User agrees to indemnify, defend and hold Nulab and its officers, directors, owners, agents, information providers, contractors, service provider, and licensors (collectively, the "Nulab Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys' fees) incurred by any Nulab Party in connection with: (i) any use or alleged use of the Site under the members User Name and Password by any person, whether or not authorised by the member; (ii) any Submitted Materials uploaded under the Member's User Name and Password; (iii) any breach by Member of its obligations, representations and warranties contained herein; or (iv) any claim that the Submitted Materials violate the intellectual property rights of any third party. Nulab reserves the right, at the Member's expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Member, and in such case, the Member agrees to cooperate with Nulabs defence of such claim.
8. Disclaimer of Warranties. This site and its content are provided by Nulab "as is" and Nulab makes no representations or warranties of any kind, either express or implied, about the or site including, without limitation, warranties of merchantability, fitness for a particular purpose or non-infringement, to the fullest extent permissible under applicable law. Nulab does not warrant that the site or its contents will be uninterrupted or error free, that defects will be corrected, or that the site or the server it is hosted on are free of viruses or other harmful or malicious components. Nulab does not warrant or make representations regarding the use or the results from the use of the site nor any of the associated software used in producing and submitting files, Nulab makes no warranties or representations regarding the content of the site regarding its correctness, accuracy, reliability or otherwise. Accordingly you acknowledge that your use of this site is at your own risk. You (not Nulab) assume the responsibility and obligation to back up your files, images and associated data, and the entire costs of all necessary servicing, repairs or correction resulting from data loss and or corruption, computer malfunction, viruses or the like.
9. Limitation of Liability. Nulab shall not be liable to You for any indirect or consequential damages, including without limitation to any damage to business earnings, profits or goodwill suffered by any person arising from this agreement, or the termination of this agreement, even if advised of the possibility of such loss. In no case shall Nulab be liable for any amount in excess of the amounts paid to users under this agreement in the six month period preceding any claim.
10. Independent Relationship. The Users relationship with Nulab is that of an independent organisation, and nothing in this Agreement is intended to, or should be construed as to, create a partnership, agency, joint venture or employment relationship. The User will not be entitled to any of the benefits, which Nulab may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing, retirement benefits or staff discounts. The user is not authorised to make any representation, contract or commitment on behalf of Nulab unless specifically requested or authorised in writing to do so by Nulab. The User is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. The User shall be solely liable for any failure to pay applicable taxes. The user is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under any Nulab Service Agreement. No part of members compensation will be subject to withholding by Nulab for the payment of any federal, state or any other employee payroll taxes.
11. Termination. Nulab may terminate this Agreement with or without cause, at any time as it deems appropriate in its sole discretion. Without limitation Nulab reserves the right to discontinue any accounts that have been inactive for more than sixty (60) days. Nulab also may terminate this Agreement immediately upon interpreted breach of Nulab's Code of Acceptable Conduct.
12. Code of Acceptable Conduct. The User shall not use the service for any of the following activities: (i) displaying photos that contain obscene or pornographic material of any kind; (ii) submitting photos, captions, names, posts, files or descriptions that convey expressions of bigotry, prejudice, racism, hatred or profanity; (iii) defaming any person or group; (iv) linking to any site that promotes any of the above; (v) uploading material containing any virus or other content that may damage the service, the network, or any other user's equipment or software; (vi) violating any laws, rules, or regulations of any governmental or other administrative organisation having authority over the service, or users. Nulab shall be the sole judge of online conduct and may refuse to process any image at its sole discretion. The User agrees to indemnify Nulab from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys' fees) arising from or relating to the breach or alleged breach by the User of the provisions of the Code of Acceptable Conduct. The User will also abide by the provisions posted on the Nulab website in the Terms of Service and Privacy Statement, as amended from time to time.
13. Forums. From time to time the Site may include bulletin boards, chat rooms, or other forums ("Forums") and the information and opinions expressed in the Forums are not necessarily those of Nulab. You are solely responsible for all content you post on or submit to the Forums. You are aware and acknowledge that Nulab has no obligation to monitor the Forums and you are not relying upon Nulab.com.au. to monitor the Forums. Furthermore, Nulab.com.au is not responsible or liable to any person or entity whatsoever (including, without limitation, persons who may use or rely on such data or materials or to whom such data or materials may be furnished) for any loss, damage (whether actual, consequential, punitive or otherwise), injury, claim, liability or other cause of any kind or character whatsoever based upon or resulting from any information or opinions provided in or through the Site. The Forums shall be used only in a non-commercial manner. You shall not, without our express approval, distribute or otherwise publish any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services. You specifically acknowledge that soliciting other Nulab users to join or become members of any commercial online service or other organisation is expressly prohibited. By posting content to any Forum or submitting any content for addition to the photographs or any other content exhibited on the site, you grant (or warrant that the owner of such rights has expressly granted) to Nulab a perpetual, royalty-free, irrevocable, nonexclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, and distribute such content or incorporate such content into any form, medium, or technology now known or later developed throughout the universe.
14. Successors and Assigns. Users may not subcontract or otherwise delegate its obligations under this Agreement without Nulabs prior written consent. Subject to the foregoing, this Agreement will be for the benefit of Nulabs successors and assigns, and will be binding on members permitted assignees.
15. Governing Law. This Agreement shall all be governed and construed in accordance with the laws of the State of Victoria applicable to agreements made and to be performed in Victoria, and that any legal action or proceeding between Nulab and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Melbourne, Victoria, Australia. Nulabs failure to enforce any provision of this Agreement shall not constitute a waiver of any provision or right.
16. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
17. Waiver. The waiver by Nulab of a breach of any provision of this Agreement by the User shall not operate or be construed as a waiver of any other or subsequent breach by the User.
18. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may only be changed by mutual agreement of authorised representatives of the parties in writing.