Terms and
Conditions

Welcome to Surfphotosmate, a place where Surfers and Photographers can connect!

2. Introduction

2.1

These terms and conditions (Terms) are entered into between Surfphotosmate Pty Ltd ABN 12 663 027 334 (we, us or our) and you, together the Parties and each a Party.

2.2

We provide a virtual marketplace where local photographers (Photographers) and local surfers (Surfers) can connect, advertise, buy and sell photographs online (Platform).

2.3

In these Terms, you means (as applicable) the person or entity registered with us as either a Surfer or a Photographer or the individual accessing or using the Platform.

2.4

If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

2.5

The use of the purchased items (surf photos) on this platform is for private use only and doesn’t allow any commercial use.

If you are a business and you would like to purchase surf photos from this platform please reach out to our Surfphotosmate customer service (E-mail info@surfphotosmate.com.au), so that we can get you in contact with the photographer.

3. Acceptance and Platform Licence

3.1

You accept these Terms by checking the box, clicking “I accept”.

3.2

We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you may terminate these Terms in accordance with the “Termination” clause.

3.3

Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to download and use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.

3.4

When using the Platform, you must not do or attempt to do anything that is unlawful or inappropriate, including:

a) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual‘s consent) or any other legal rights;

b) using the Platform to defame, harass, threaten, menace or offend any person;

c) using the Platform for unlawful purposes;

d) interfering with any user of the Platform;

e) tampering with or modifying the Platform (including by transmitting viruses and using trojan horses);

f) using the Platform to send unsolicited electronic messages;

g) using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform; or

h) facilitating or assisting a third party to do any of the above acts.

4. Accounts

4.1

You must register on the Platform and create an account (Account) to access the Platform’s features.

4.2

You may only have 1 Account as a Photographer and 1 Account as a Surfer on the Platform.

4.3

Surfers must provide basic information when registering for an Account including your contact name and email address and you must choose a username and password.

4.4

Photographers must provide a business name, contact name and email address and you must choose a username and password. As a Photographer, you must link your Stripe merchant account to your Account before you can start receiving the proceeds of the sale of any Photograph Listings.

4.5

The username you choose must not (1) be offensive or in other ways insulting or (2) contain characteristics which belong to a third party, including names of famous persons, or personal names to which you do not own the rights.

4.6

You may also register for an Account using your Facebook, Google or other social media network account (Social Media Account). If you sign in to your Account using your Social Media Account, you authorise us to access certain information on your Social Media Account including but not limited to your current profile photo and other basic information.

4.7

Once you have registered an Account, your Account information will be used to create a profile which you may then curate.

4.8

All personal information you provide to us will be treated in accordance with our Privacy Policy.

4.9

You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer it to others.

4.10

You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.

4.11

We may make access to and use of certain parts of the Platform subject to conditions or requirements and quality of services.

5. Platform summary

5.1

The Platform is a virtual marketplace where Surfers and Photographers can find each other, and advertise, buy and sell photographs online. The Platform provides a space for Photographers who photograph surfers to share and sell their images. We provide the Platform to users (including hosting and maintaining the Platform), process payments between Surfers and Photographers and provide promotional opportunities for Photographers (together with the Surfphotosmate Services). You understand and agree that we only make available the Surfphotosmate Services. We are not party to any agreement entered into between a Surfer and a Photographer and we have no control over the conduct of Photographers, Surfers or any other users of the Platform.

5.2

A Photographer wanting to sell a photograph or photographs creates an Account on the Platform and posts the photograph or photographs they have taken of surfers (Photograph Listing) and posts fees for the photograph or photographs (Listing Fees).

5.3

A Photographer can choose to apply discount options to the Listing Fees before they post a Photograph Listing. Once posted on the Platform, the Listing Fees are not negotiable.

5.4

A Surfer wanting to buy a photograph or photographs creates an Account on the Platform to view and browse Photograph Listings by using the functions on the Platform such as a drop-down menu or search bar to search for a geographical location or Photographer.

5.5

A Surfer may purchase the photograph or photographs in a Photograph Listing on the Platform.

5.6

By posting a Photograph Listing, the Photographer confirms that it is legally entitled to and capable of supplying the photograph or photographs.

5.7

Photographers must include all additional terms and conditions relating to their supply of a photograph or photographs in the relevant Photograph Listing or must clearly state that there are additional terms and conditions. By purchasing a photograph or photographs in a Photograph Listing, a Surfer is accepting the additional terms and conditions of the relevant Photographer.

6. Promotional Opportunities and Discount Codes

6.1

As a Photographer, you may choose to purchase promotional opportunities, such as a feature in our email marketing or placement on our home page (Promotional Opportunity). Promotional Opportunities are subject to the fees and the terms and conditions as set out in any Promotional Opportunity offer and displayed on the Platform or otherwise communicated to you. In the event of any conflict between any Promotional Opportunity terms and conditions and these Terms, the Promotional Opportunity terms and conditions will prevail.

6.2

As a Surfer, we may from time-to-time issue you promotional discount codes for use on the Platform. To claim the discount, you must enter the promotional discount code at the time of making a purchase on the Platform. The conditions of use relating to promotional discount codes will be set out on the Platform. We may also from time to time run competitions on the Platform or on social media. These competitions are subject to terms and conditions which will be made available on the Platform at the time of the competition.

7. Exclusivity

7.1

As a Photographer, once you post a Photograph Listing with Listing Fees on the Platform, you must not sell the photograph or photographs in the Photograph Listing outside our platform to Surfers which you connected to through our Marketplace.

7.2

As a Photographer, if you breach clause 7.1 we reserve the right to delete or suspend your Account at our sole discretion.

8. Communication

8.1

We may contact you via the Platform using in-Account notifications, or via off-Platform communication channels, such as text message or email.

9. Payments

9.1

As a Surfer, you agree to pay (and your chosen payment method will be charged) the Listing Fees in the Photograph Listing.

9.2

In consideration for providing the Platform, we will charge the services fees (including any third-party payment processing fees) to the Photographer as set out on the Platform (Service Fee). The Service Fee will be deducted from the Listing Fees, and will be paid to us at the same time as the Surfer pays the Listing Fees through the Platform.

9.3

The payment methods we offer for the Service Fees and for the Listing Fees are set out on the Platform. We may offer payment through a third-party provider (for example, Stripe). You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.

9.4

You must not pay, or attempt to pay, the Listing Fees or the Service Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment.

9.5

You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us (whether under these Terms or otherwise).

9.6

We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.

10. Refunds and Cancellation Policy

We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.

11. Intellectual Property

11.1

All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with the Terms, any content on the Platform, and the products) (Our Intellectual Property) will at all times vest, or remain vested, in us.

11.2

We authorise you to use Our Intellectual Property solely for the purposes for which it was intended to be used.

11.3

You must not, without our prior written consent:

a) copy, in whole or in part, any of Our Intellectual Property;

b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or

c) breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property; causing any of Our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of Our Intellectual Property.

11.4

Nothing in the above clause restricts your ability to publish, post or repost Our Intellectual Property on your social media page or blog, provided that:

a) you do not assert that you are the owner of Our Intellectual Property;

b) unless explicitly agreed by us in writing, you do not assert that you are endorsed or approved by us;

c) you do not damage or take advantage of our reputation, including in a manner that is illegal, unfair, misleading or deceptive; and

d) you comply with all other terms of these Terms.

11.5

This clause will survive the termination or expiry of these Terms.

12. Content you upload

12.1

You may be permitted to post, upload, publish, submit or transmit relevant information and content (User Content) on the Platform. We may run campaigns via the Platform and via social media that encourage you to post User Content on social media using specific hashtags (#surfphotosmate) (@surfphotosmate).

12.2

If you make any User Content available on or through the Platform, including on social media using a Tag, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through or by means of the Platform and our social media platforms. You may request that any of your User Content is removed from the Platform or social media by sending us an email to the address at the end of these Terms. We will endeavour to action any removal requests within a reasonable time.

12.3

You agree that you are solely responsible for all User Content that you make available on or through the Platform, including on social media using a Tag. You represent and warrant that:

12.4

you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content (as contemplated by these Terms); and

12.5

neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our Platform (including on social media) will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

12.6

We do not endorse or approve, and are not responsible for, any User Content. We may, at any time (at our sole discretion), remove any User Content.

12.7

This clause will survive the termination or expiry of these Terms.

13. Marketing and Promotion

13.1

You agree for us to promote you, your Photograph Listings and any User Content on our Platform and social media channels or any other platform and channels which we notify you of, for the purpose of marketing and promoting our Surfphotosmate Services.

13.2

For the purpose of clause 13.1, you grant us an exclusive, royalty-free, revocable, worldwide, non-transferable licence to use or exploit your Intellectual Property in relation to Photograph Listings and any User Content, for the purpose of providing the Surfphotosmate Services and as set out under these Terms.

14. Warranties

14.1

You represent, warrant and agree that:

a) you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;

b) there are no legal restrictions preventing you from entering into these Terms;

c) all information and documentation that you provide to us in connection with these Terms is true, correct and complete;

d) you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;

e) where you are a Photographer, you are responsible for complying with all laws, rules and regulations which apply to providing the services in your Photograph Listings; and

f) where you are a Photographer, you are appropriately qualified, and have any required skills, knowledge or training, to provide the services.

15. Australian Consumer Law

15.1

Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).

15.2

If the ACL applies to you as a consumer, nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.

15.3

Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

15.4

As a Surfer, the photograph or photographs supplied by a Photographer may also confer on you certain rights under the ACL.

15.5

This clause will survive the termination or expiry of these Terms.

16. Exclusions to liability

16.1

Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

a) the use or results of any Third Party Inputs;

b) any aspect of the Surfer and Photographer interaction including the photograph or photographs supplied by the Photographer; and

c) any event outside of our reasonable control.

16.2

You agree to indemnify us for any Liability we incur due to your breach of the Acceptance and Platform Licence clause and the Intellectual Property clause of these Terms.

16.3

This clause will survive the termination or expiry of these Terms.

17. Limitations on liability

17.1

To the maximum extent permitted by law:

a) neither Party will be liable for Consequential Loss;

b) each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel, including any failure by that party to mitigate its losses; and

c) our maximum and aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Surfphotosmate Services to you or, in our sole discretion, to us repaying you the amount of the Service Fees paid by you to us in respect of the supply of the Surfphotosmate Services to which the Liability relates.

17.2

This clause will survive the termination or expiry of these Terms.

18. Termination

18.1

Your Account and these Terms may be terminated by you at any time, using the ‘delete Account’ functionality (or similar) in the Account page section of your Account settings.

a) Please note that Photos or Videos purchased by a Surfer can’t be deleted from the platform when you delete your Account

18.2

We may terminate these Terms at any time by giving 30 days’ written notice to you (Termination for Convenience).

18.3

These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

a) the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within [10] Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or

b) the Defaulting Party is unable to pay its debts as they fall due.

18.4

Should we suspect that you are in breach of these Terms, we may suspend your Account while we investigate the suspected breach.

18.5

Upon expiry or termination of these Terms:

a) we will remove your access to the Platform;

b) we will immediately cease providing the Surfphotosmate Services;

c) you agree that other than where termination is due to our Termination for Convenience and to the maximum extent permitted by law, any payments made by you to us (including any Service Fees) are not refundable to you; and

d) where we terminate the Terms for any reason other than a Termination for Convenience, you also agree to pay us our reasonable additional costs directly arising from such termination.

18.6

Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

18.7

This clause will survive the termination or expiry of these Terms.

19. Notice regarding Apple

19.1

To the extent that you are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.

19.2

Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform.

19.3

Apple is not responsible for addressing any claims by you or any third party relating to our Platform or your use of our Platform, including but not limited to (1) product liability claims; (2) any claim that our Platform fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

19.4

Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our Platform infringes that third party’s intellectual property rights.

19.5

You agree to comply with any applicable third-party terms when using our Platform, including any Usage Rules set forth in the Apple App Store Agreement of Service.

19.6

Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

19.7

You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting“ country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

20. General

20.1

Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

20.2

Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

20.3

Disputes: In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a Surfer and us, or a Photographer and us, a Party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

20.4

Entire Terms: Subject to your Consumer Law Rights, these Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

20.5

Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.

20.6

Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

20.7

Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

20.8

Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

20.9

Publicity: With your prior consent, you agree that we may advertise or publicise the broad nature of our supply of the Surfphotosmate Services to you, including on our website or in our promotional material.

20.10

Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

20.11

Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

20.12

Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.

21. Definitions

21.1

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

21.2

Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

21.3

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

21.4

Intellectual Property Breach means any breach by you (or any of your personnel) of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties).

21.5

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.

21.6

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Surfphotosmate Services may be contingent on, or impacted by.

For any questions or notices, please contact us at:

Surfphotosmate Pty Ltd ABN 12 663 027 334

Email: admin@surfphotosmate.com.au

Last update: 26 October 2022

© LegalVision ILP Pty Ltd