Important Notice
By registering a Profile on Our Site, downloading any Media from the Site, by making any Use of the Media, or by indicating Your acceptance of this Agreement in any other way, You agree to the terms of this Agreement.
This agreement is also incorporated into other agreements that you have with us, such as a License Agreement, Custom Retouching Service Agreement or Artist Submission Agreement.
Please pay particular attention to clauses in bold in this agreement. This is a summary of those clauses for your convenience and does not form part of the agreement. It is your responsibility to read the clauses referred to.
• You are responsible for your own actions when using the profile that you set up on our website, and agree to follow the rules that we make for using the profile (clause 7).
• You will indemnify us and not hold us
liable for any damage suffered by you or a third party that is related to this Agreement or any Media that you download from our website (clause 10).
1. Background to Agreement
If You want to download and use Media from Our website, or if you want to sell Media to Us, you must be a member of Our website, and to do that you must create a profile. This agreement governs Your membership of the site and how You use Your profile.
The rights that You have to use Media downloaded from Our website are set out in this Agreement. You can only Use the Media if You agree to the terms of this Agreement.
If You do not agree with the terms of this Agreement, or do not have authority to enter into this Agreement, You may not download or make use of the Media.
Other Agreements. Your use of the Site and the Media is regulated by different agreements depending on what You are doing. The terms of this Membership Agreement also form part of these agreements.
License Agreement deals with Your Use of the Media, depending on what licensing options You have chosen.
Custom Retouching Service Agreement applies if You want Us to alter Media that You have licensed from Us.
Artist Submission Agreement applies if You want to sell Your Media to Us.
2. Definitions
The following words and phrases have these meanings in this Agreement:
“Agreement” means this Membership Agreement as well as the other documents referred to in it, which are deemed to form part of the Agreement.
“CPA” means the Consumer Protection Act No. 68 of 2008.
“Intellectual Property Rights” means copyright, patents, registered designs, trademarks (whether registered or not) , trade secrets, database rights, design rights, service marks and other intellectual property rights and rights to claim something as confidential information, including in other jurisdictions that grant similar rights.
“License Fee” means the amount payable to Us for licensing the Licensed Media.
“License Agreement” means a license agreement with Us that allows You to download and use the Media.
“Licensed Media” means Media that You are licensed to use in terms of a License Agreement with Us.
“Media” means photographs, images, vectors, films, videos, animations or other audio / visual media offered for distribution through the Site, and includes portions and adaptations thereof.
“Order Confirmation” means the confirmation that We send to You that confirms the Terms of Your order for Media or services.
“Price” means a License Fee or a Retouching Fee.
"Profile" means the information that We hold about You, including details of money paid to Us by You, billing and transaction records, personal contact details, and reference to a Profile includes reference to all rights that You hold under this Agreement.
“Retouching Fee” means the amount payable to Us for altering Licensed Media for You.
“Site” means Internet World Wide website at URL www.peopleimages.com or such other URL as We may indicate from time to time.
“Us”, “We” or “Our” means Yuri Arcurs Productions (Pty) Ltd, a company incorporated in terms of the company laws of the Republic of South Africa with registration number 2010/021359/07, and also includes reference to Our holding company and its subsidiaries.
“Working Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa.
“You” or “Your” refers to you, or your employer or any other entity that you have full legal authority to bind and may be accepting this Agreement on behalf of.
3. Agreement
3.1 Acceptance. By registering a Profile for Our Site, downloading any Media from the Site, by making any Use of the Media, or by indicating Your acceptance of this Agreement in any other way, You agree to the terms of this Agreement.
3.2 Incorporation. This Agreement consists of this document, and also incorporates the terms of the License Agreement, Custom Retouching Service Agreement, Artist Submission Agreement and Order Confirmation, if relevant.
3.3 Conflict. If there is any conflict between the contents of this document and the contents of the above documents, then the provisions of this document will prevail.
3.4 Media Usage. You agree and acknowledge that You will only use Media from the Site in accordance with this Agreement and the appropriate License Agreement for the Media and that You will not obtain any Media from the Site illegally.
3.5 Amendments. We reserve the right to amend the terms of this Agreement at any time and without notice to You. You are advised to regularly check whether these terms have changed. The most recent version of the Agreement will be available on the Site. Please refer to the last revision number and date at the top of this document If You do not accept any amendment of the Agreement You may terminate it on notice to Us. Termination for this reason will not affect any License Agreement.
4. Registration of Profile
4.1 Accuracy Upon accepting this Agreement, You agree and acknowledge to provide accurate personal information requested during the registration process and to keep this information updated and accurate at all times.
4.2 Purpose You agree that Your member name and password are for Your use only and that You will not share this information with anyone else.
4.3 Unauthorised Use You agree and acknowledge that You will contact Us immediately should You experience any unauthorized use of Your Profile details.
4.4 Responsibility We do take security seriously, but as the user, You accept all risks of any unauthorized access that could occur regarding Your registration data. Although this is not a likely scenario, We want You to be aware of every effort We take on Your behalf.
4.5 Juristic Persons. Juristic persons are encouraged to open Profiles using the details of the juristic person rather than that of the employee, officer or agent acting on behalf of the juristic person.
4.6 Profiles Registered for Others. If You set-up a Profile on behalf of another person, all rights arising from that Profile, including Intellectual Property Rights, rights of access, amendment of information held by Us, and the right to be paid out any monies by Us will vest in that other person.
5. Orders and Delivery
5.1 Orders. You may order Media or services through the Site.
5.2 Pricing. The Prices are displayed on the Site. We reserve the right to change the Prices at any time, but the price of the Media will always be the price specified on the Checkout page.
5.3 Order Confirmation. When You place an order with Us, and We have received payment from You, We will send an order confirmation to the email address in Your Profile. This will confirm the details of Your order for Media or services.
5.4 Duration of Media After Purchase.
5.4.1 The Licensed Media will be available for download as many times as needed for the next two (2) Working Days after We confirm the order.
5.4.2 If We have retouched Media for You, the Media will be available for download as many times as needed for the next two (2) Working Days after we confirm that We have completed the alteration.
5.4.3 After this time additional payment will be required to download the Media.
5.4.4 If there has been some technical problem and for some reason You were unable to download the Media please contact support and explain to them Your situation, upon which We may reactivate Your download link for a limited time at Our discretion.
5.5 Spiders and Bots. No automated processes such as “spiders” or “bots” may be used to download Media from the Site.
5.6 Returns. The Licensed Media is provided to You in electronic form and so by its nature cannot be “returned”. There is thus no “cooling-off period” or right to return Licensed Media that you have obtained from Us. If the Licensed Media that We deliver to You is not the same as the Media that You ordered, or if the Licensed Media is corrupted, We will immediately send you the correct Media.
6. Payment
6.1 Payment. Your payment of the Prices must be made into Our bank account in advance in one of the following ways:
6.1.1 Credit Card Payment. At the time of placing the order, the transaction details are presented to the bank and payment is collected immediately. If the bank’s authorisation is not obtained, the order will be cancelled.
Your Account. You can either pay on an item-by-item basis, or You can purchase credits which will be held in your Profile and redeemed in future transactions.
Credits will be valid for three (3) years from the date that you paid for them. After that time the credits will expire and cease to have any value.
We may give You credits as a bonus or as part of a special offer. If We ever refund You for Your credits, We will not pay You for credits earned in this way.
Currency This Site deals with several currencies which gives You the ability to download Media from the Site. Payment methods are specified in the Checkout Page.
Taxes. You acknowledge that depending on Your residence and geographical position, taxes may be added to the License Fee under this Agreement. Value added tax at the rate of 14% is charged on orders to South African residents. VAT is not payable on orders if both the billing and the shipping address are international.
7. Operation of Profile
7.1 Your Responsibility. You accept that You are responsible for the consequences of Your use of Your Profile, and for maintaining it and all information in it.
7.2 Access. You will have access to Your Profile by means of a username and password.
7.2.1 Access to the Profile will allow You to order and download Media, and make changes to Your personal information.
7.2.2 If You forget Your username or password, We will only take steps that We regard as being secure to ensure that You re-gain access to Your Profile.
7.3 Use of Profile. You agree:
7.3.1 not to use Your Profile to commit any unlawful activity, or in a way which is likely to be defamatory or cause offense.
7.3.2 not to divulge Your username or password to any other person.
7.3.3 not to impersonate any other person in dealing with Us, and particularly not to access the Site using another user’s username and password.
7.4 Disputes. If there is a dispute as to which party has the right to operate a Profile, We may:
7.4.1Deny access to the Profile pending the outcome of the dispute to Our satisfaction, and / or
7.4.2 Transfer the Profile to the party claiming a right to it if We are satisfied that the Profile was registered on behalf of that party (as set out in clause 4.6 above).
8. Relationship
Independent Contractor. The relationship of the parties is that of an independent contractor. Nothing in this Agreement will constitute the relationship of employer and employee, partnership or a joint venture between You and Us.
No Agency. This Agreement does not give rise to a relationship of principal and agent. Neither party will be entitled to conclude any agreement on behalf of the other, nor to sign any document on behalf of the other, unless this is expressly authorised in writing by the other.
9. LIMITATION OF LIABILITY & INDEMNITY
9. 1 • Limitation of Liability. You agree that We will not be liable for any damages that You or any third party might suffer that relate to or arise from this Agreement or the Media, whether or not anyone anticipated or should have anticipated that the damages would occur. The excluded damages include direct damages, as well as indirect or consequential damages (such as loss of profits, business, goodwill, revenue or anticipated savings).
9.2 • Indemnity. You agree to indemnify and hold Us harmless in respect of any claim that a third party might bring against Us that relates to or arises from this Agreement or the Media.
9.2.1 • This indemnity includes claims arising from use of Your Profile that does not comply with clause 7, or if We transfer Your Profile to another person, or if another person accesses Your Profile without Your consent.
9. 2.2 • This indemnity also includes all liability or loss that We might suffer as a result of a claim, including legal costs on the scale as between attorney and own client and any additional legal costs.
10. Termination
10.1 Termination for Breach. If You commit a material breach of this Agreement and fail to remedy the breach within 5 (five) Working Days after having received a written notice to do so, We may terminate this Agreement without further notice to You.
10.2 Termination for Convenience. You may terminate this Agreement at any time by giving Us written notice.
10.3 Consequences of Termination. If this Agreement is terminated for any reason:
10.3.1 We may delete Your Profile and Your associated access rights and personal information.
If you have breached the terms of any License Agreement, We may also terminate that License Agreement.
10.4 Right to Claim Damages. Termination of this Agreement will not affect Our right to claim damages against You for breach of this Agreement and / or copyright infringement.
11 Disputes
11.1 Arbitration. Any dispute between You and Us arising out of or in connection with this Agreement will be submitted to confidential arbitration. The arbitration will be held in Cape Town (South Africa), subject to the arbitral law of South Africa. The parties consent to the sole jurisdiction of the High Court of South Africa in adjudicating disputes arising from or connected with the arbitration. The Arbitration Foundation of South Africa will act as the appointing authority.
11.2 Urgent relief. Nothing will restrict Our right to apply to a competent court for relief should Our Intellectual Property Rights be violated or threatened, and the parties consent to the jurisdiction of the Western Cape Division of the High Court of South Africa for such purposes.
11.3 CPA. If the CPA prevents Us from choosing which tribunal hears disputes with You, then this clause will not restrict You from approaching a tribunal as described in the CPA.
12 Force Majeure
Neither party will be liable for any delay in performing or any failure to perform any obligations under this Agreement due to any cause beyond their reasonable control, including but without being limited to any of the following: strikes, lock outs or other industrial action, sabotage, terrorism, civil commotion, riot, invasion, war, threat of or preparation for war, fire, explosion, failure of electrical supply, storm, flood, subsidence, epidemic or other natural physical disaster, impossibility of the use of railways, shipping aircraft, motor transport or other means of public or private transport; any act or policy of any state or government or other authority having jurisdiction over either party, sanctions, boycott or embargo.
13 Interpretation & General
13.1 Whole Agreement. This Agreement is the whole of the agreement between the parties, and no document or statement not mentioned above will form part of it. Only a written variation, waiver or cancellation agreed to by both parties will be of any effect.
13.2 Applicable Law & Jurisdiction. The law of the Republic of South Africa will apply to this Agreement, its interpretation and any matter or litigation relating to or arising from it, and the parties consent to the jurisdiction of the courts of Republic of South Africa in this regard.
13.3 Survival. For the avoidance of doubt, any provision of this Agreement that anticipates any right or duty extending beyond the termination or expiry of this Agreement will survive the termination or expiry of this Agreement and continue in full force and effect.
13.4 No Indulgence. If one party chooses not to enforce any part of this Agreement, that does not mean that the party cannot enforce that part at a later time. If any part of the Agreement is found to be unenforceable, the rest will still be enforceable.
13.5 Representatives. The signatories hereto acting in representative capacities warrant that they are authorised to act in such capacities, and accept personal liability under this Agreement should they prove not to be so authorised.
13.6 Reading Down. If a provision of this Agreement is reasonably capable of an interpretation which would make that provision valid and enforceable and an alternative interpretation that would make it void, illegal, invalid or otherwise unenforceable, then that provision shall be interpreted, so far as is possible, to be limited and read down to the extent necessary to make it valid and enforceable.
13.7 Severance. In the event that any part of this Agreement is found to be partially or fully unenforceable because it does not comply with any law, or for any other reason, this will not affect the application or enforceability of the remainder of this Agreement.
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