Copyright and Legal
Independent Newspapers, Westender, 3E Innovative, Artsguide, Australian Rules and Associated Websites Conditions of Use
Conditions of Use
This agreement together with any additional terms, conditions, notices and disclaimers contained elsewhere on Independent Newspapers, Westender, 3E Innovative,, Artsguide and Associated Websites form the conditions of supply of material on, use of and access to these websites. Your continued use of Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites constitutes an affirmative, acknowledgment and agreement by you that you accept and agree to abide and be bound by these conditions and any modifications.
Should you object to any of these conditions or any subsequent modifications your only recourse is to immediately discontinue your use of Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites.
The websites that form the network of Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites are operated by 3E Innovative Pty Ltd ABN 21 105 626 220 (each of the company and the network of sites is referred to as 3E Innovative, Artsguide and Associated Websites”).
These Independent Newspapers, Westender , 3E Innovative, Artsguide and Associated Websites Conditions of Use govern your use of all sites that form part of the network of 3E Innovative, Artsguide and Associated Websites sites. In addition, there are specific conditions for User Submissions and Contributions whether written, visual or electronic. The additional conditions for User Submissions and Contributions are set out separately below.
Further, there are specific conditions that apply to the Google Maps service that is available through sites forming part of Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites. A link to these conditions is included below.
From time to time, Independent Newspapers, Westender, 3E Innovative may run competitions, prize draws and promotions on 3E Innovative, Artsguide and Associated Websites. These will be subject to additional terms and conditions, which will be made known to you at the time.
Accuracy of information and disclaimer of warranties
All material on Independent Newspapers, Westender ,3E Innovative, Artsguide and Associated Websites is provided in good faith. It is derived from sources believed to be accurate and current as at the date of publication. Your use of Independent Newspapers, Westender , 3E Innovative, Artsguide and Associated Websites is at your sole risk. Access to Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites is provided on an 'as available' basis. Neither 3E innovative its related bodies corporate nor its or their directors or employees make any representation or warranty that (i) any material on Independent Newspapers, Westender ,3E Innovative, Artsguide and Associated Websites will be reliable, accurate or complete (nor do they accept any responsibility arising in any way for errors in, or omissions from that material); or (ii) your access to 3E Innovative, Artsguide and Associated Websites will be uninterrupted, timely or secure. Independent Newspapers, Westender ,3E Innovative will not be liable for loss resulting from any action or decision by you in reliance on the information on Independent Newspapers, Westender ,3E Innovative, Artsguide and Associated Websites, nor any interruption, delay in operation or transmission, virus, communications failure, Internet access difficulties, or malfunction in equipment or software.
At 3E Innovative we take your online security very seriously. As such, we have prepared the following guidelines and information to help you enjoy trouble free browsing when visiting our websites or interacting with our email messages.
3E Innovative will never ask you to provide personal information like your bank details, credit card details, your address, driving licence or passport numbers via email.
If you’re making an online purchase from a Independent Newspapers, Westender, 3E Innovative, Artsguide or Associated Website and are required to provide us with your bank or credit card details, this will be carried out within a secure browser window provided for this purpose by our bankers. Check that a locked padlock symbol appears at the foot of the browser in which you are entering your details. The URL should also change, to start with 'https://...' instead of 'http://...'
- Be sure to double check the website address at the top of your browser.
- Be wary of opportunities that seem 'too good to be true' when interacting with our sites.
- Our sites do not endorse individual sellers or vendors.
- Report any suspicious activity to us immediately.
- Keep your computer up to date with anti-virus, firewall software and the latest patches.
- Disregard and delete spam, chain and junk emails.
In general, If you’re concerned about online security please visit one of the following useful websites for more detailed information on how you can protect yourself.
ACCC What to look out for and how to protect yourself.
Australian High Tech Crime Centre The Australian Federal Police "e-Crime" policing strategy and how you can report a crime.
FIDO ASIC's online information centre highlighting popular scams and how to avoid them.
General information only - non advisory The material on 3E Innovative provides general information only. It is not intended as advice and must not be relied upon as such. You should make your own inquiries and take independent advice tailored to your specific circumstances prior to making any decisions.
Copyright and Trademarks
The material provided on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites is copyright protected. You may use this material for your own personal reference only. Except for the temporary copy held in the computer's cache and a single permanent copy for your personal reference, the material may not otherwise be used, copied, reproduced, published, stored in a retrieval system, altered or transmitted in any form or by any means in whole or part (except where such use constitutes fair dealing under the Copyright Act) without the prior written approval of 3E innovative or the appropriate supplier or licensor of Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites.
You may not use any part of the material on a, or provided by a Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Website or news service to establish, maintain or provide, or assist in establishing, maintaining or providing your own publications, Internet site or other means of distribution.
The Independent Newspapers, Westender, 3E Innovative and Artsguide logos, the logos of the 3E Innovative, Artsguide and Associated Websites and the mastheads of 3E Innovative’s periodicals on the Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites are the registered trademark or Copyright of 3E Innovative or its related bodies corporate. Other trademarks may be displayed on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites from time to time. These may belong to third parties. Nothing displayed on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites should be construed as granting any licence or right of use of any logo, masthead or trademark displayed on a website, without the express written permission of the relevant owner.
As a condition of your use of Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites or any services on 3E Innovative, Artsguide and Associated Websites, you warrant to 3E Innovative that you will not use Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites for any purpose that is unlawful or prohibited by these terms & conditions or any other terms, conditions or notices appearing anywhere on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites. You agree to abide by all applicable laws and regulations. In particular, you agree not to:
- use Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites to defame, abuse, harass, stalk, threaten or otherwise offend others;
- publish, distribute, e-mail, transmit or disseminate any material which is unlawful, obscene, defamatory, indecent, offensive or inappropriate;
- use any automated scripting tools or software;
- engage in or promote any surveys, contests, pyramid schemes, chain letters, unsolicited e-mailing or spamming via Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites;
- impersonate any person or entity;
- upload, post, e-mail, transmit or otherwise make available using Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites any material that you do not have a right to make available under any law or contractual obligation or which contains viruses, or other computer codes, files or programs designed to interrupt, limit or destroy the functionality of other computer software or hardware;
- breach any applicable laws or regulations.
3E Innovative has no obligation to monitor any user's use of Independent Newspapers, Westender,3E Innovative, Artsguide and Associated Websites, however 3E Innovative retains the right at all times to monitor, retain and disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request. You will indemnify 3E Innovative if 3E Innovative or its related bodies corporate suffer any loss or damage or incur any costs in connection with any breach of these conditions or any other legal obligation by you or your use of or conduct on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites.
Unless stated to be otherwise, charges referred to for use of any services provided by 3E Innovative via Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites are inclusive of GST. Where GST applies, upon payment 3E Innovative will deduct the GST it incurs from each payment and 3E Innovative will issue the member with a Tax Invoice for the goods or services purchased. GST means the Australian goods and services tax charged under A New Tax System (Goods and Services Tax) Act 1999 (the "Act"). Tax invoice means tax invoice as defined by the Act.
Third party links and advertising
Hyperlinks and pointers to websites operated by third parties will appear on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites from time to time. These websites do not form part of Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites and are not under the control of 3E Innovative or its related bodies corporate and neither 3E Innovative nor its related bodies corporate have any responsibility for the contents of any such hyperlink or linked website. If you link to any such websites you leave Independent Newspapers, Westender, 3E Innovative, Artsguide and its Associated Websites and do so entirely at your own risk.
3E Innovative displays third party advertisements, which may or may not contain hyperlinks or referral buttons to websites operated by third parties. The display of such advertising does not in any way imply a recommendation or endorsement by 3E Innovative or its related bodies corporate of the relevant advertiser, its products or services or any such linked website.
If you contact a third party using functionality provided on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites, including via e-mail, 3E Innovative accepts no responsibility for any actions taken by that third party in response to your communication or for any transactions entered into between you and the relevant third party.
Limitation of liability
3E Innovative and its related bodies corporate do not exclude any rights and remedies available to you under the Trade Practices Act (Cth) or any similar State or Territory legislation that cannot be excluded, restricted or modified. Otherwise 3E Innovative and its related bodies corporate exclude all conditions and warranties that may be implied by law. To the extent permitted by law, 3E Innovative’s liability for breach of any implied warranty or condition which cannot be excluded is restricted, at 3E Innovative’s option, to:
in the case of services supplied or offered by Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites:
- the re-supply of those services; or
- the payment of the cost of having those services re-supplied; and
- in the case of goods supplied or offered by Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of having the goods replaced; or
- the payment of the cost of having the goods repaired.
You expressly agree and understand that in no circumstances will 3E Innovative or its related bodies corporate be liable to you for any indirect, incidental, special and/or consequential losses or damages or loss of profits of whatever nature howsoever arising (including but not limited to any act or omission by 3E Innovative or its related bodies corporate) which result from (i) the use of or access to or any inability to use or access 3E Innovative or any material on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites; (ii) unauthorised access to or alterations of your transmissions or data; or (iii) statements or conduct of any third party on Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites. Excluding liability for negligence the maximum liability of 3E Innovative and its related bodies corporate is equivalent to the total of any amounts you have paid to 3E Innovative and its related bodies corporate in respect of goods or services supplied to you by 3E Innovative or its related bodies corporate through Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites.
These conditions and all other specific and additional terms which govern your use of and access to Independent Newspapers, Westender, 3E Innovative, Artsguide and Associated Websites and any claims made upon 3E Innovative or its related bodies corporate will be governed by and construed in accordance with the laws of the State of Queensland, Australia.
Conditions of use specific to Google maps
The Google Maps service is provided to 3E Innovative and made available to you under licence from Google Inc. By using the Google Maps service and any data or information accessed from Google Maps, you agree to be bound by the Google Maps terms and conditons available at the following url: http://www.google.com/intl/en_us/help/terms_maps.html
Conditions of use specific to User Submissions and Contributions (Visual, Written or Electronic)
These terms apply to any text, illustrations, photos, audio, video or other material (“Material”) submitted by You to 3E Innovative for posting on the Independent Newspapers, Westender, Artsguide or 3E Innovative or on any third party’s website or for publishing in any publication.
3E Innovative reserves the right to amend these terms at any time by posting the changes online.
You can submit Material by: In Writing, Email and Phone.
You agree that by submitting any Material to Independent Newspapers, Westender, Artsguide or 3E Innovative:
You grant 3E Innovative a worldwide, royalty-free, perpetual, licence to use, reproduce, edit and exploit the Material in any form or on any medium and for any purpose, including posting the Material on Independent Newspapers, Westender, Artsguide, 3E Innovative or third party website or publication, using the Material in any promotions and marketing, and sub-licensing the Material;
- You warrant that you own all rights, including intellectual property rights, in the Material;
- You have the authority to grant this license to 3E Innovative;
- You warrant that the Material does not breach any laws, including defamation laws;
- So far as you are able, you unconditionally waive all moral rights (as defined by the Copyright Act 1968) which you may have in respect of the Material. Further, you unconditionally consent to any act or omission by 3E Innovative in relation to the Material which may otherwise be an infringement of your moral rights;
- You warrant that the events depicted in the Material submitted are real and not fabricated; and
- The Material does not contain anything that is obscene, pornographic or in breach of any law or regulation.
- You agree to indemnify 3E Innovative and its related bodies corporate for any loss or damage arising as a result of your breach of these terms
Prowess Sports Statistics
AFL statistics are provided by Prowess Sports
(a) The User agrees that all Intellectual Property in the Software Output vests in the Gundy Computer Services Pty Ltd trading as Prowess Sports. These statistic may not be reproduced or resold on any meduim electronic or otherwise.
(b) Subject to subclauses (c) and (d), Gundy Computer Services Pty Ltd trading as Prowess Sports has granted a licence to the 3E Innovative P/L to use the Statistics for their publication to the Persons and Organisations.
(c) The licence of usage granted in subclause (b) expires at the earliest of:
(1) the conclusion of the Term; or
(2) the termination of this Agreement.
(d) 3E innovative Pty Ltd agrees that, in relation to the Statistics:
(1) It will not sell copies of the Statistics or earn revenue that is related to the Recorded Statistics in any way without expressed agreement from an authorised officer of Gundy Computer Services Pty Ltd trading as Prowess Sports;
(2) 3E innovative Pty Ltd will be permitted to publish the Statistics in the agree public forum or website
(3) 3E innovative Pty Ltd will not copy or publish the Statistics in any other way without expressed agreement from an authorised officer of the Gundy Computer Services Pty Ltd trading as Prowess Sports
SMG Photographic Services & Images Subscription Licence
An agreement exists between 3E Innovative Pty Ltd and the THE SLATTERY MEDIA GROUP PTY LTD and under the covenent of the agreement a copy of that agreement must be posted here. Users of the sites owned or operated by 3E Innovative are bound by the same copyright and usage terms contained below.
This agreement applies to licences issued over the internet and is applicable to the delivery of Licensed Material by any means ("the agreement").
In this Agreement the following definitions apply:
1.1 “AFL” means Australian Football League.
1.2 “Editorial Purpose” means use of the Licensed Material for the purpose of
reviewing, reporting on or commenting on current, historic or future events.
1.3 “Fees” means the fees set out in the Invoice.
1.4 “GST” means the tax imposed by the GST Act and the related imposition Acts of the Commonwealth.
1.5 “GST Act” means A New Tax System (Goods and Services Tax) Act 1999, as amended from time to time.
1.6 “GST Exclusive Consideration” means any consideration payable under this agreement that either does not include an amount referable to GST or, if the consideration is inclusive of GST, is that consideration excluding the amount referable to GST using the rate of GST in force at the time the parties agreed on the consideration.
1.7 “Intellectual Property Rights” means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
1.8 “Internet” means the internet as that term is understood at the relevant time, being the collection of interconnected computers using Transmission Control Protocol/Internet Protocol, together with any method of electronic, wireless or optical communication including (without limitation) streaming, the hypertext protocol (HTTP), secure hypertext transfer protocol (HTTPS), file transfer protocol (FTP), and including internet protocol television (IPT).
1.9 “Invoice" means the computer-generated or pre-printed invoice provided by SMG or an authorised third partv that may include, without limitation, the Licensed Material selected, any limitations on the license in addition to those specified in this Agreement and the corresponding price for the license of such Licensed Material. The Invoice and all information accompanying the Licensed Material on SMG’s website (including all areas of the purchase process) or information otherwise notified to the Licensee by SMG shall be incorporated into this Agreement and all references to this Agreement shall include the Invoice and all that information.
1.10 "Licensed Material" means any still image, film or video footage, audio product, visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files or any copying, publication, distortion, alteration, cropping or manipulation thereof or any creation of derivative work thereof, or any other product protected by copyright, trademark, patent or other intellectual property right, which is identified in the Invoice and is licensed to the Licensee by SMG under the terms of this Agreement. Any reference in this Agreement to the Licensed Material shall be to each individual item within the Licensed Material and also to the Licensed Material taken as a whole.
1.11 “Mobile Telephony Devices” means any mobile wireless device which can make or receive voice telephone calls and which is designed or adapted to be capable of being used while the user is in motion, including without limitation 3G phones or mobile phones.
1.12 "Reproduction" and "Reproduce" mean any form of copying or publication
of the whole or part of any Licensed Material, via any medium by whatever means, and the cropping of the whole or any part of the Licensed Material.
1.13 “Taxes” means any taxes, imposts, deductions, levies, charges (including transportation and delivery charges), withholdings and duties imposed by any government agency (including stamp, customs and transactions duties) arising in connection with this agreement, together with any penalties, fines, expenses and interest arising in connection with those amounts, but does not include GST.
2.1 Provision of Photographic services
2.1.1 SMG agrees to provide the Licensee with photographic coverage of various AFL
matches, functions and events and photographic shoots requested by the Licensee during the term of this Agreement, and to provide the images taken at these matches, functions, events and photographic shoots to the Licensee for use in accordance with this Agreement. Those images will be the Licensed Material which is the subject matter of this Agreement.
2.1.2 The Licensee may provide SMG with a photographic brief prior to each nominated event. Match day requests will be provided to SMG by Friday 10am EST before each round commences. All functions and events require seven (7) days' notice and are subject to availability.
2.1.3 All rights (including but not limited to copyright) to the Licensed Material will remain with SMG and SMG may include, and license, that Licensed Material on its website as it chooses in its absolute discretion.
2.1.4 Licensed Material will be made available to the Licensee in original JPEG format
either on the www.aflphotos.com.au website or the Licensee’s FTP server, accessed via a unique username and password, or by other means as agreed.
2.2 Fees and Payment for Photographic Services
2.2.1 In consideration for the rights granted by the license under this Agreement, the Licensee shall pay SMG a total subscription fee specified in the Invoice for use of all the Licensed Material ("Subscription Fee").
3. Grant of Rights
Subject to the terms of this Agreement (including but not limited to the restrictions and limitations specified or referred to in section 4):
3.1 the Licensee has the non-exclusive, non-assignable, non-sublicensable right to download, store and Reproduce the Licensed Material within Australia for editorial use only with 3E Innovative ; Licensed Material can be used for the subscription term of the License ("Term");
3.2 any additional use of the Licensed Material for a purpose other than that described in clause 3.1 above requires the prior written consent of SMG and the payment of additional fees as determined between SMG and the Licensee from time to time.
3.3 the Licensee has the right to have the Licensed Material Reproduced by subcontractors of the Licensee for preparation of the final product for the licensed use, provided that the Licensee ensures that such subcontractors agree to be bound by the provisions of this Agreement;
3.4 the Licensee may crop the Licensed Material provided that the editorial integrity of the Licensed Material is not compromised, but the Licensed Material shall not under any circumstances be altered, changed or tampered with, either manually or electronically, without the express prior written consent of SMG;
3.5 the Licensee may only use the Licensed Material during the Term except that the Licensee may, after the Term, continue using the final products into which Licensed Material was incorporated during the Term (unless this Agreement was terminated because of the Licensee's breach of any provision of this Agreement). The Licensed Material may in no instance be used in a new product or for the first time by the Licensee after the Term.
3.6 SMG reserves all rights in the Licensed Material that are not expressly granted in this clause 3.
4.1 You must not use or permit any other person to use, the Licensed Material in any way not permitted in clause 3.
4.2 The Licensee shall not sublicense, sell, assign, convey or transfer this Agreement or any of its rights under this Agreement.
4.4 The Licensee shall not: (i) distort, alter or manipulate the whole or any part of the Licensed Material; (ii) create any derivative work from or incorporating the Licensed Material; or (iii) sell, license or distribute any derivative work from or incorporating the Licensed Material.
4.3 The Licensee shall not incorporate the Licensed Material into a trademark, service mark or logo.
4.4 The Licensee shall not:(i) post the Licensed Material online in a downloadable format other than for personal use of the Internet end users; or (ii) include the Licensed Material in an electronic template intended to be Reproduced by third parties on electronic or printed products.
4.5 If any Licensed Material featuring a model or player image is used in (i) a manner that would lead a reasonable person to believe that the model or player expressly or by implication uses or endorses a product or service; or (ii) connection with a subject that would be unflattering or unduly controversial to a reasonable person, the Licensee must accompany each such use with a statement that indicates that the person is a model or player and the Licensed Material is being used for illustrative purposes only.
4.6 The Licensed Material shall not be used in a defamatory, pornographic or otherwise illegal manner, whether directly or in context or juxtaposition with other materials.
4.7 The Licensee must retain the copyright symbol, the name of SMG, the Licensed Material's image number or identification number and any other information as may be invisibly embedded in the electronic file containing the original Licensed Material. The Licensee may not create an archive of the Licensed Material. The Licensee shall not make additional high-resolution copies of the Licensed Material and the Licensee shall maintain a robust firewall to safeguard against unauthorised third-party access to the Licensed Material. Notwithstanding the foregoing, the Licensee may make one (1) high-resolution backup copy of the Licensed Material for security purposes only.
4.8 The Licensee must abide by any restriction on use notified to it by SMG before or at the time of delivery of the Licensed Material and must take all commercially reasonable steps to comply with such restrictions after the Licensee commences use of the Licensed Material.
4.9 If the Licensed Material is used for an Editorial Purpose, the Licensee must include the following credit adjacent to the Licensed Material: "SMG Images" or as otherwise notified by SMG.
4.10 SMG does not warrant the accuracy of the captions accompanying the Licensed Material.
4.12 The Licensee must abide by any restrictions or limitations placed on the use of the Licensed Material by third parties, including but not limited to the AFL, where Licensee is made of aware of such restrictions in writing. In particular:
(i) the Licensee’s use of the Licensed Material must at all times accord with the relevant terms of the Collective Bargaining Agreement between the AFL and the AFL Players’ Association;
(ii) the Licensee must not use the Licensed Material for any purpose other than Editorial Purposes without first obtaining the written consent of the AFL; and
(iii) the Licensee must not use the Licensed Material for any purpose related to or on the Internet other than in accordance with 4.13 below.
The Licensee must also take all commercially reasonable steps to abide by those restrictions or limitations notified to the Licensee after it has commenced using the Licensed Material.
4.13 AFL Images may be used by the Licensee for editorial purposes on the Internet or via Mobile Telephony Devices. Any news service comprising AFL Images via the Internet or via Mobile Telephony Devices must be based on an editorial decision on bona fide news grounds (as opposed to an entertainment offering) and must:
(i) Identify the original source of the AFL Image via a caption, in the article and in the image tag.
(ii) Include no more than two (2) images in each news story;
(iii) Not contain any gallery of AFL Images;
(iv) Not alter or vary the AFL Image, in particular no “air brushing” of player uniforms or advertising signs visible in the AFL Image is permitted;
(v) Not be offered in downloadable format other than for the personal use of the Internet end user;
(vi) Not be offered to any third party for commercial purposes including but without limitation retail sale via any means and sales for advertising or promotional purposes.
5. Intellectual Property
5.1 No ownership or copyright in any Licensed Material shall pass to the Licensee by
the issuing of the license contained in this Agreement.
5.2 The Licensees acknowledges and agrees that all intellectual property of SMG in the Licensed Material is and shall remain the sole property of SMG, and all intellectual property of the AFL in the Licensed Material is and shall remain the sole property of AFL, and all Intellectual property of third parties in the Licensed Material is and shall remain the sole property of that third party.
5.3 When using the Licensed Material the Licensee must retain SMG’s copyright symbol, SMG’s name, the image number and any other information embedded in the file containing the Licensed Material.
The Licensee and SMG each represent and warrant that it has the full right and
authority to enter into and perform its obligations pursuant to this Agreement.
7.1 The Licensee shall indemnify and keep indemnified each of SMG, its related bodies
corporate (as that term is defined in the Corporations Act 2001 (Commonwealth)), directors, officers, employees, contractors and agents against all losses, liabilities, damages (excluding punitive damages), costs and expenses (including reasonable legal costs and expenses on a full indemnity basis) and taxes, incurred directly or indirectly in connection with or arising from any claim by third parties relating to the Licensee's use of any Licensed Material outside the scope of this Agreement
7.2 SMG shall indemnify and keep indemnified the Licensee, its related bodies corporate (as that term is defined in the Corporations Act 2001 (Commonwealth)), directors, officers, employees, contractors and agents against all losses, liabilities, damages (excluding punitive damages), costs and expenses (including reasonable legal costs and expenses on a full indemnity basis) and taxes, incurred directly or indirectly in connection with or arising from any claim for third parties intellectual property infringement.
8. Limitation of Liability
8.1 Implied terms and warranties excluded
Subject to clause 8.6, SMG gives no releases and makes no warranties (save for the warranty in clause 6 above), in each case express or implied, relating to this Agreement or its subject matter including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.
8.2 Indirect losses excluded
Subject to clause 8.6, SMG excludes all liability for indirect and consequential loss or damage (including for loss of profit (whether direct, indirect, anticipated or otherwise), loss of expected savings, opportunity costs, loss of business (including loss or reduction of goodwill), damage to reputation regardless of whether any or all of these things are considered to be indirect or consequential losses or damage) in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement or its subject matter.
8.3 Losses resulting from unauthorised use excluded
(a) SMG is not liable for any loss or damage resulting from the Licensee’s unauthorised use of the Licensed Material, including any claims by third parties.
(b) In the event of unauthorised use of the Licensed Material, SMG has the right to charge the Licensee five times the Fee as specified in the Invoice.
8.4 Losses resulting from pre-existing defect excluded
The Licensee is responsible for examining the Licensed Material before use. Subject to clause 8.6, SMG is not liable for any loss or damage suffered by the Licensed Material or any third party resulting from any defect in the Licensed Material or accompanying written caption.
8.5 Cap on liability
Subject to clause 8.6, SMG’s total liability for loss or damage of any kind not excluded by clause 8.2, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement or its subject matter is limited in aggregate for any and all claims to the amount of Fees paid by the Licensee. This clause does not apply to liability arising under clause 7.2.
8.6 Non excludable terms
Where any Act of Parliament implies in this agreement any term, and that Act voids or prohibits provisions under a contract which exclude or modify the operation of such term, the term is taken to be included in this agreement. However, the liability of SMG for breach of such term will, if permitted by law, be limited to one of the following remedies (at SMG’s option):
8.6.1 if the breach relates to goods:
18.104.22.168 the replacement of the goods or the supply of equivalent goods;
22.214.171.124 the repair of such goods;
126.96.36.199 the payment of the cost of replacing the goods or of acquiring equivalent goods; or
188.8.131.52 the payment of the cost of having the goods repaired;
8.6.2 if the breach relates to services:
184.108.40.206 the resupply of the services; or
220.127.116.11 the payment of the cost of resupplying the services.
8.7 Licensee contribution
The liability of SMG to the Licensee for loss or damage of any kind in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement or its subject matter is reduced to the extent that the Licenses causes or contributes to the loss or damage.
9. Fees & Taxes
The Licensee must pay the Fees in the amounts and on the terms and conditions set out in the Invoice.
The Licensee is responsible for all Taxes arising from or relating to this agreement and must pay them directly (for Taxes imposed on the Licensee) and on behalf of SMG (for Taxes imposed on GST) within 7 days of them becoming due.
Where GST is imposed on any supply made under this agreement by one party (“Supplying Party”) to another party (“Receiving Party”), the Receiving Party must pay or provide the GST Exclusive Consideration for the supply and, in addition to and at the same time as the GST Exclusive Consideration is payable or to be provided, an additional amount calculated by multiplying the value of that GST Exclusive Consideration (without deduction or set-off) by the prevailing GST rate. This clause does not apply to a supply for which a GST inclusive consideration has been agreed unless the supply is made after a change to the GST rate has been effected and the agreed GST inclusive consideration has not had the GST rate change taken into account, in which case the consideration payable for the supply shall be calculated pursuant to this clause.
10. Termination and Revocation
10.1 The license contained in this Agreement will terminate automatically without notice from SMG if the Licensee breaches any provision of this Agreement. SMG reserves the right to immediately terminate access to the Licensed Material or the licence contained in this Agreement in the event of abusive or suspected fraudulent use of the Licensed Material.
10.2 Upon the expiration of the Term or earlier termination of this Agreement the
licence contained in this Agreement will immediately cease and the Licensee must immediately (i) stop using the Licensed Material; (ii) destroy or, upon the request of SMG, return the Licensed Material to SMG; (iii) delete or remove the Licensed Material from the Licensee's premises, computer systems and storage (electronic or physical) and shall ensure that its employees, contractors and subcontractors do likewise and (iv) immediately pay to SMG all amounts owing up to the date of termination without any deductions or set off of any kind.
10.3 SMG reserves the right to revoke the license to use the Licensed Material on reasonable notice and for good cause and substitute such Licensed Material with alternative Licensed Material. Upon notice of any revocation of a license for any Licensed Material, the Licensee shall immediately cease using such Licensed Material and shall where possible ensure that its clients and customers do likewise.
11.1 Entire agreement
This agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior understandings, arrangements and agreements between the parties.
SMG may novate, or assign or otherwise deal with any of SMG’s rights or obligations under this agreement by notice to the Licensee and the Licensee must, at no cost, immediately execute any documents necessary to give effect to this.
11.3 Variation and waiver
11.3.1 A provision of this agreement or a right created under it, may not be varied or waived except in writing by SMG, and no other conduct will amount to a waiver.
11.3.2 In particular:
18.104.22.168 a waiver of a right on one occasion does not prejudice a right if it arises subsequently; and
22.214.171.124 the exercise of a right does not prejudice the future exercise of that or any other right.
11.4 Discretion in exercising rights
A party may exercise a right or remedy or give or refuse its consent in any way it considers appropriate (including by imposing conditions), unless this agreement expressly states otherwise.
11.5 Approvals and consents
By giving its approval or consent a party does not make or give any warranty or representation as to any circumstance relating to the subject matter of the consent or approval.
The indemnities in this agreement are continuing obligations, independent from the other obligations of the parties under this agreement and continue after this agreement ends.
Clauses 1,7,8,10 and 11.3 survive the termination (for any reason) of this agreement, as do any rights or remedies that have accrued prior to termination.
If the whole or any part of a provision of this agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this agreement or is contrary to public policy.
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, this agreement or any part of it.
11.10 Vienna Convention
The United Nations Convention on Contracts for the International Sale of Goods (The Vienna Convention) does not apply to this agreement.
11.11 Governing Law
This agreement is governed by the law in force in the State of Victoria, Australia, and each party submits to the non-exclusive jurisdiction of the courts of that place.
AFL Images governed by this agreement can be purchased from Slattery Media Group Pty Ltd at http://images.slatterymedia.com/photography/