HEADPRESS TERMS AND CONDITIONS FOR USERS OF PHOTOGRAPHS
1. Nature of Your Agreement With Headpress
These terms and conditions are included in your agreement with Headpress Pty Limited ABN 50 073 819 351 of Suite 3 Lower Courtyard 163 Brougham Street Kings Cross NSW 2011 Australia("Headpress"). The agreement concerns any and all photographs and other visual images or materials which Headpress may supply to you, by any and all means whether electronic or otherwise, from time to time, including but not limited to, prints, transparencies, negatives, tear sheets and electronic or digital versions of the foregoing ("Photographs"). You are deemed to have accepted these terms and conditions if you accept delivery of any Photographs under any dispatch notice or other document on which these terms and conditions are reproduced or if you pay any invoice on which these terms and conditions are reproduced. You are also deemed to have accepted these terms and conditions if you view or download any Photographs from the Headpress website or from an email sent to you by Headpress. These terms and conditions prevail to the extent of any inconsistency with the terms and conditions of any document issued by you (whether before or after you first receive notice of these terms and conditions). Unless expressly stated to the contrary, words and expressions used in these terms and conditions have the meanings given to them in the Copyright Act 1968.
2. Notice of Purpose and Other Matters
You must give Headpress prior notice of the purpose for which, the territory in which, the time during which and the media in which, you propose to publish or otherwise exploit each Photograph. Whenever considered reasonably practicable by Headpress, Headpress will give you prior notice of the licence fees which will be payable to Headpress if you publish or otherwise exploit the Photographs as proposed. Headpress will also give you prior notice if Headpress is on express notice that your publication or exploitation of certain Photographs will require the authority of a third party. Headpress makes no warranty or representation to the effect that it will cause or procure any required third party authority to be given. Unless Headpress gives you notice that any required third party authority has been given, you have no right to publish or exploit the Photographs concerned. It is your sole responsibility to obtain all authorities which may be necessary for the publication or exploitation of the Photographs, except for those of which Headpress has given you notice. Without limiting the foregoing, Headpress makes no warranty or representation to the effect that your publication or exploitation of the Photographs will not infringe the rights of any third parties, except those of which Headpress has given you notice.
3. Limited License
Subject to any required third party authority of which Headpress is on express notice, Headpress is the exclusive licensee of the copyright in each of the Photographs within the territory of publication or exploitation. In consideration of your agreeing to pay the applicable license fees and surcharges charged by Headpress, and subject to any required third party authority, Headpress grants you a licence to publish or exploit each Photograph for the single purpose, in the agreed territory, during the agreed period and in the single media, made known by you in advance. Unless otherwise agreed by Headpress in writing, each licence will be non-exclusive and non-transferable. The mere delivery to you by Headpress of Photographs and the mere online communication of Photographs to you by Headpress does not confer a licence on you to publish or exploit those Photographs. You are not entitled, among other things, to copy, reproduce or store whether electronically or otherwise any Photographs except as necessary for the purposes of publishing or exploiting them according to a licence granted to you by Headpress. You acknowledge and agree that many Photographs are made available to Headpress for dissemination by third parties for publicity and public relations purposes. You are not entitled, among other things, to publish or exploit a Photograph of a person or product in conjunction with any text, statement or representation which portrays, or is likely to portray, that person or product in an unfavourable, adverse or negative manner, even if to do so would not defame that person or otherwise infringe any applicable rights at law. Unless Headpress gives you notice to the contrary, you must cause each page or other place on which Photographs are published, displayed or exploited to contain the following credit: "Photograph by [insert name of photographer]/ Headpress". Without limiting the rights of Headpress if you fail to provide the credit required by Headpress, you must in that case pay Headpress a surcharge. The surcharge will be determined by Headpress in its discretion but will not exceed 50% of the applicable licence fee otherwise payable in respect of each of the Photographs concerned.
4. Your Payment to Headpress
In consideration of Headpress granting the above licence, you agree to pay Headpress the applicable licence fees and surcharges charged by Headpress in the ordinary course of its business from time to time. If at your request Headpress obtained a required third party authority in relation to the proposed publication or exploitation of a Photograph, but you did not publish or exploit the Photograph as proposed, you must pay Headpress one half of the minimum licence fee which would have been payable if you had published or exploited the Photograph. Without limiting the rights of Headpress, if you caused or permitted the publication or other exploitation of a Photograph without the required third party authority and Headpress is later able to obtain that authority, you must in that case pay Headpress the applicable licence fee together with a surcharge determined by Headpress but not exceeding 100% of the applicable licence fee. You acknowledge and agree that such a surcharge is no more than reasonably necessary to compensate Headpress for the extra costs associated with seeking the required third party approval after the Photograph has been published or exploited. You must pay the applicable fees and surcharges to Headpress not later than 30 days after the actual or proposed date of first publication or exploitation (as the case may be), or the date of Headpress' invoice, whichever is earlier. Headpress is entitled to charge interest on outstanding invoices at such rates as may be lawfully permitted from time to time.
5. Handling of Photographs
Subject only to bona fide third party rights, all Photographs, and all copies or reproductions made by you, including all electronic copies and reproductions remain the property of Headpress and must be returned to Headpress not later than 30 days after delivery to you. All copies of Photographs supplied to or made by you electronically must be irretrievably destroyed by you within that time. In no circumstances are you entitled to store Photographs electronically after the expiration of the applicable licence period. If you fail to return a Photograph to Headpress within time, you must pay Headpress a holding fee of A$1.00, or such higher fee as Headpress may have notified you, for each day or part thereof during which the return of the Photograph is overdue. Unless you give Headpress written notice to the contrary immediately after your receipt of Photographs, it will be presumed that the Photographs were undamaged and were otherwise fit for publication or exploitation when delivered to you. If an original photographic print or transparency is lost, destroyed or substantially damaged while in your possession, custody or control you must pay Headpress A$1,500.00, or such higher fee as Headpress may have notified you, in respect of that photograph on demand. If a duplicate photograph is lost, destroyed or substantially damaged while in your possession, custody or control you must pay Headpress A$150.00, or such higher fee as Headpress may have notified you, in respect of that photograph on demand. Photographs are deemed to be in your possession, custody or control from the time you receive them from Headpress or its agents until the time Headpress receives them from you or your agents. You assume the risk of the Photographs between those times.
6. Your Indemnity to Headpress
Without limiting the rights of Headpress, you agree to indemnify Headpress and to keep Headpress indemnified from and against any and all costs or liabilities (including without limitation legal costs on a full indemnity basis) caused to Headpress by any breach by you of these terms and conditions or by any failure to comply with warranties or representations made by you to Headpress. Your indemnity includes, without limitation, costs or liabilities incurred by Headpress in circumstances where you caused or permitted the publication or other exploitation of a Photograph without the required third party approval and Headpress was unable to obtain that approval.