Terms and Conditions
Atomik Arts Hire Agreement - For Perth-based professional photographers wishing to hire photo equipment.
Atomik Arts Standard Terms and Conditions.
Atomik Arts Standard Terms and Conditions.
Acceptance of Quotations, Engaging in our Services, Orders for our Products, Consumption of Atomik Arts’ Content, Payment of Invoices and redemption of Gift Certificates constitute an agreement and adherence to these Terms and Conditions and other relevant documents such as the Atomik Arts Terms of Payment.
Furthermore, Consumers of Atomik Arts’ Content are bound to agreement and adherence to these Terms and Conditions herein and other relevant documents and applicable legislation, such as the Copyright Act and others.
1. DEFINITIONS
1.1 “Atomik Arts” means Atomik Arts ABN 53 761 148 385 of the address as registered with the Australian Business Register, operating from Perth, Western Australia. “Atomik Arts” includes Adam Mazur and his related or associated entities, agents, subcontractors and franchisees.
1.2 The term “Content” means any images, photographs, digital media, works, designs, concepts, plans, proposals, communications, samples, galleries, sites, storage, archival, commercially sensitive information, locations and other goods and services, tangible and intangible, owned, created, manufactured, distributed, exhibited, displayed, sold, communicated by Atomik Arts.
1.3 The “Consumer” means the party placing an order for the purchase of goods or services or Content from Atomik Arts and any party, individual, organisation, entity and otherwise, engaging directly or indirectly, in the consumption, use, viewing, distribution, sale, production or any other activity relating to goods and services and Content of Atomik Arts.
1.4 An “Order” refers to an order for goods or services. An Order also refers to Quotations.
2. ACTING IN RELIANCE
2.1 The Consumer warrants that the information provided by the Consumer is true and correct. The Consumer acknowledges that Atomik Arts will act in reliance on this information.
2A. APPLICATION OF TERMS AND CONDITIONS
2A.1 These Terms and Conditions (“T&Cs”) apply to each and every dealing between the parties Atomik Arts and the Consumer, and the Consumer agrees to adhere to, and be bound to these Terms and Conditions and that they will prevail over any other verbal, implied or written conditions, whether verbal, implied or written to the extent permitted by law.
2A.2 These T&Cs are correct as of 1st December 2009 and may be updated by Atomik Arts as required, from time to time and the current version of the T&Cs herein, shall be binding upon the Consumer. See http://atomikarts.com/info/terms for the current version.
3. ORDERS
3.1.1 Orders are subject to acceptance in accordance with these T&Cs. Orders are subject to acceptance by Atomik Arts in whole or in part.
3.1.2 An order shall also include any dealings or activities that directly or indirectly violate these T&Cs, such as unauthorised and unlicensed Consumption on Atomik Arts’ Content.
3.1.3 Engaging in Atomik Arts’ services and reciept of Atomik Arts’ goods and Content constitute an order and thus forms an acceptance by the consumer to be bound by these T&C’s and any additional written agreements, terms and licensing agreements that Atomik Arts supply to the Consumer before commencement of work or before supply of any goods or Content.
3.1.4 It is the Consumer’s responsibility to ensure that the electronic files supplied comply with Atomik Arts’ file specifications requirements and that the files supplied are correct and able to be printed as soon as they are supplied. Files supplied without ‘bleed’ will be printed as they are supplied under the assumption that this is the Consumer’s requirement, unless the Consumer advises Atomik Arts otherwise. It is the Consumer’s responsibility to ensure that any materials supplied for printing do not breach relevant copyright legislation. Atomik Arts accepts no responsibility for any copyright issues. No assumptions or judgements are made by Atomik Arts in relation to the correctness or acceptability of any electronic files supplied to us. Electronic files are printed as supplied by the Consumer and there will be variations between finished printed products and the same file being printed on various proofing devices (i.e. Inkjet printers and the like). Consumers must also understand that our printing process will result in colour variations between orders and exact colour matching cannot and will not be provided by Atomik Arts. Colour variations will occur from job to job and run to run. This is a normal occurrence using industry-standard printing methods, which Atomik Arts follow in line with our strict quality control procedures.
Please advise Atomik Arts accordingly where an exact colour match is critical and required or if the Consumer is uncertain with any aspect of your supplied electronic files. Electronic files may be kept and stored by Atomik Arts for future use by the Consumer should they be required in the future, however, Electronic files must be supplied with each and every order. It is also the Consumer’s responsibility to understand the nature of the various stocks that we print on and the impact of different finishing options will have on that stock (i.e. appearance and texture). Atomik Arts assumes that its Consumers are fully aware of this impact before any orders are placed. Atomik Arts accept no responsibility whatsoever for any cracking or peeling caused by folding of brochures or the like. This also applies to published and printed media such as photo albums, prints, ready-to-hang products and any other product that Atomik Arts may have on offer. NO REFUNDS OR REPRINTS will be provided for any breaches of the Consumer’s responsibility contained within this clause. For photo albums, contact Atomik Arts if there are any issues within 30 days on receipt of your photo album should there be any issues with the construction or physical assembly of the album. A reprint may be offered, solely at the discretion of Atomik Arts.
3.2 The Consumer must place a written order setting out full details of all of their requirements, in writing. Atomik Arts will not be responsible for any mistakes that may be attributable to insufficient or lack of written details. The Consumer will be required to pay for such goods ordered by mistake.
3.3 Atomik Arts reserves the right to impose minimum order requirements at anytime which may be changed by Atomik Arts from time to time.
3.4 No order may be cancelled except with the written consent of Atomik Arts.
3.5 If the Consumer purports to cancel any order, such conduct may be treated as a repudiation of the contract, the terms and conditions as stated on the invoice and these T&Cs. The Consumer shall pay Atomik Arts all losses, damages, costs and expenses incurred or suffered by Atomik Arts as a result of such conduct (Minimum $20 cancellation fee regardless of circumstances will be incurred by Consumer).
3.6 Orders shall not be varied unless the variation has been approved in writing by Atomik Arts.
3.7 Atomik Arts or the manufacturer of the goods (“the Manufacturer”) may, without notice, change the range of goods and services or redesign or modify existing goods or services resulting in some goods becoming obsolete or unavailable and Atomik Arts or the Manufacturer shall not be liable for any loss or damage suffered by the Consumer or the Consumer’s Consumers as a result. The Consumer undertakes to advise any person or company to whom it sells any goods of this condition.
4. ACCEPTANCE OF ORDERS
4.1 An Order will be deemed to have been accepted by Atomik Arts upon transmission at the earlier of:
4.1.1 such order to Atomik Arts (ABN 53 761 148 385) receipt of payment for the goods or services to Atomik Arts; or
4.1.2 despatch of the goods from, or commencement of services, or release, publication, transmission or activity that facilitates Content being submitted by, Atomik Arts.
4.2 No orders may be varied or cancelled by the Consumer after acceptance; unless agreed to by Atomik Arts, on terms and conditions set by Atomik Arts. Quotations may be prepared and re-issued after expiry, as shown on the Quotation, however Atomik Arts reserve the right to change, alter and modify any aspect, condition and offer in its Quotations.
5. PAYMENT
5.1 The Content must be paid for in full at the time of placing the order for the goods or services by the Consumer. Atomik Arts does not grant credit to its Consumers unless otherwise agreed to in writing between the relevant parties.
5.2 Atomik Arts may require an amount be paid by the Consumer as a non-refundable deposit, which constitutes a part payment of due moneys. Refer to the current version of the Atomik Arts Terms of Payment, which is attached to each invoice. Payment for goods and services and content must be received by the methods on offer, as stated on the current version of the Terms of Payment, as attached to each invoice. Payment is to be received by Atomik Arts at the time of placing the order for the goods and services and Content with Atomik Arts.
5.3 Atomik Arts may not be obliged to hand over, deliver, transmit, supply, exchange, publish, distribute or otherwise engage in an activity that releases the goods or content, or perform services until all monies owing and overdue to Atomik Arts by the Consumer, including for any prior orders, are paid to Atomik Arts and shall not be responsible for any loss or damage suffered by the Consumer as a result.
5.4 If Atomik Arts agree in writing, and in its absolute discretion, to grant credit or open an account to the Consumer, the Consumer must complete a Credit Application and provide security and guarantees as required by Atomik Arts.
6. PRICES AND RESALE PRICES
6.1 Atomik Arts’ price lists or quotations do not constitute an offer.
6.2 Quotations are given and orders are accepted only on the basis that the prices charged will be those applicable at the date of the quotation being accepted or otherwise an order being despatched, ex Atomik Arts. All prices are subject to change without notice.
6.3 Prices may be inclusive of costs of delivery of the goods to the Consumer in the Perth Metropolitan Area, and any applicable goods and services tax. In the case of printed media such as business stationery, magazines and other Content published, manufactured and distributed by Atomik Arts using the four-colour process (CMYK), the cost of delivery for goods are included in the prices, unless otherwise noted.
6.4 All prices are subject to change without notice.
6.5 Recommended and suggested resale or retail prices wherever shown are recommended resale or retail prices only and there is no obligation to comply with any recommendation or suggestion.
6.6 The Consumer shall in addition to any monies otherwise payable hereunder pay any applicable goods and services taxes (or its equivalent) in respect of any goods and/or services purchased.
6.7 All prices stated, quoted, invoiced, in price-lists for Atomik Arts’ Content, goods and services are in Australian Dollars (AUD).
7. MODIFICATIONS
7.1 Atomik Arts are not obliged to attend to any modifications or variations to the goods, services and Content, unless agreed in writing by Atomik Arts.
7.2 If any modifications to the goods, services and Content are required to comply with the regulations or laws of the State or Country in which the Consumer is located and/or in which the Content is to be resold or used by the Consumer, each order must include clear instructions detailing the required modifications.
7.3 The Consumer must not modify the goods and Content in any way, other than with the written consent of Atomik Arts and in strict compliance with instructions supplied by Atomik Arts.
7.4 Atomik Arts shall not be liable for any loss or damage suffered by the Consumer or any third party of or incidental to any form of Modifications.
7.4.1 If Atomik Arts agrees to undertake any modifications or variations to the Content in accordance with a request by the Consumer and if the instructions or information supplied by the Consumer are incorrect, incomplete or in any way ambiguous, Atomik Arts shall not be liable for any loss or damage including consequential loss or damage suffered by the Consumer or any third party of or incidental to the variations or modifications not complying with the Consumer’s requirements or not complying with the regulations, standards or laws to which the goods and Content and/or the Consumer are subject.
8. SHIPMENT AND SUPPLY
8.1 All representations by Atomik Arts as to the date and/or time for delivery are made in good faith, but are not guaranteed. All representations are made in good faith, in the light of conditions and circumstances that are known to Atomik Arts at the time.
8.2 Atomik Arts and its directors, officers, employees, sub contractors, distributors and associated entities and individuals shall not be held liable for late deliveries or non-deliveries and under no circumstances shall Atomik Arts be liable for any loss, or damage, including consequential loss or damage, or delay occasioned or suffered by, to the Consumer or its Consumers arising from late or non-delivery of goods or service, whether such loss or damage is due to negligence or wilful act, misconduct or default of Atomik Arts or any third party and whether or not if the same occurs in the course of the performance by Atomik Arts of any contract or in circumstances which are foreseeable by Atomik Arts or in circumstances which would constitute a fundamental breach of any contract or a breach of any fundamental term hereof.
8.3 Goods will normally be shipped by the most convenient and economical method and route having regard to the nature of the goods. Atomik Arts reserves the right to charge the Consumer for delivery. Content such as printed media, photographic Content, tangible or intangible, digital or otherwise, may be supplied electronically via a transmission or may be provided on a storage medium such as a disc, solely at the discretion of Atomik Arts. Atomik Arts reserves the right to charge the Consumer for delivery, supply of Content by means of a disc or for any reasonable costs otherwise incurred in order to deliver the Content to the Consumer.
8.4 If Atomik Arts was unable to deliver part of an order for any reason whatsoever, Atomik Arts may deliver by instalments. Each instalment shall be regarded as a separate contract and any defect in, or failure to deliver an instalment shall not give the Consumer the right to cancel the balance of deliveries due under the order.
8.5 The Consumer will upon receipt, inspect the goods and Content and notify Atomik Arts of any errors, issues or shortages within three days after delivery, quoting delivery docket numbers and all other relevant details.
9. DAMAGE OR LOSS IN TRANSIT
9.1 It shall be the responsibility of the Consumer to insure the goods and Content after despatch from Atomik Arts. Atomik Arts may suggest insurance or postal registration, but it is the Consumer’s responsibility to ensure that the insurance is adequate for the purpose. Atomik Arts shall not be liable for any loss or damage suffered during transit of the goods or Content to the Consumer.
10. TITLE AND RISK
10.1 Atomik Arts reserves all legal title and ownership in relation to the goods and Content until all monies owed by the Consumer to Atomik Arts are fully paid. In the case of Content which falls under the T&Cs and falls under the protection of The Copyright Act, Trademarks Act, Patents and any form of Intellectual Property that distinguishes and forms any part of the Content of Atomik Arts, Atomik Arts reserve legal title and ownership to the content for the period of time as offered by the exclusive agreement between the Consumer and Atomik Arts or as described by the relevant legislation. In cases where there is any ambiguity, refer to the current, relevant legislation as is applicable to the Content in question.
10.2 Until the legal ownership of the goods or Content has passed to the Consumer, the Consumer shall be a bailee of such goods in its possession but title for such goods remains with Atomik Arts.
10.3 If the goods or Content are resold, or products or services are manufactured, published, distributed, tangible or non-tangible, using the goods or Content as originally sold by the Consumer, the Consumer shall hold such part of the proceeds of any such sale and royalties as represents the invoice price of the goods or Content sold or used in the manufacture in a separate identifiable account as the beneficial property of Atomik Arts and shall pay such amounts to Atomik Arts upon request.
10.4 Notwithstanding the provisions above, Atomik Arts shall be entitled to maintain an action against the Consumer for the whole purchase price and any other loss suffered or incurred by Atomik Arts.
10.5 The Consumer shall have no claim against Atomik Arts for any damages or other monies whatsoever if Atomik Arts repossesses or attempts to repossess the goods and Content. The rights of Atomik Arts hereunder are in addition to any other claim or rights Atomik Arts has under any other term hereof or under any other contract between the parties.
10.6 Risk in the goods and Content supplied by Atomik Arts shall pass to the Consumer immediately on despatch by Atomik Arts and the Consumer shall keep the goods insured, safe and readily identifiable.
10.7 Atomik Arts reserve the right to request a deposit or full pre-payment for goods and/or services, in order to secure a booking and/or in order to secure commencement of work for an order/project. Goods and Services that require a deposit or full pre-payment are clearly indicated on the pricing pages and tables (see http://www.atomikarts.com/info/pricing for specific goods and/or services requiring a deposit or full pre-payment).
10.8 Atomik Arts reserve the right to withhold the supply, distribution, publication, retrieval, upload, capture and delivery of content, goods and/or services if the Client has not secured their booking with a deposit (of full pre-payment where applicable) or if the Client has refused to provide payment for moneys due, as indicated on the respective invoice and related agreements, inclusive of overdue account interest (if applicable) where an invoice is unpaid beyond the Standard Terms of Payment.
10.9 Atomik Arts reserve the right to refuse to, or suspend, or postpone photographic coverage of an event, function, delivery and rendering of photographic services for packages Atomik Arts have on offer, if the Client has failed to secure a booking with a deposit (or full pre-payment where applicable). Likewise, Atomik Arts are obligated to render, supply, deliver and otherwise service and otherwise act upon the Client’s order once a booking has been secured (or full pre-payment where applicable) as soon as is practical for both Atomik Arts and the Client.
11. DEFAULT
11.1 In the event the Consumer is in default of any term or condition and such default has continued for a period of twenty-eight days, Atomik Arts shall, at its election at any time thereafter, be at liberty to cancel any or all orders yet to be completed and to recover from the Consumer any or all losses, damages, costs, interest, fees, charges (including handling charges payable to Atomik Arts and its suppliers) and all expenses incurred and suffered by Atomik Arts as a result of the Consumer’s default and the subsequent cancellation.
11.2 The Consumer shall have no recourse whatsoever against Atomik Arts for any loss or damaged suffered as a result of any such cancellation.
11.3 In the event that any monies are due and payable by the Consumer to Atomik Arts, but remain unpaid beyond the period stated in the current Terms of Payment, Atomik Arts may charge the Consumer and be paid interest on the outstanding balance from the due date until payment is received by Atomik Arts at a rate of 10% per calendar month or part thereof, and the Consumer will also pay to Atomik Arts, any costs and expenses (including recovery and legal expenses) that Atomik Arts incurs in enforcing these Terms and Conditions of Sale, any applicable legislation or any other Agreement that it has with the Consumer.
12. DEFECTS
12.1 Any claim by the Consumer relating to any defect in manufacture of goods or Content, or any shortage or other nonconformity to an order for goods or services shall be made in writing to Atomik Arts at its registered address, within 3 days of delivery of the goods or services.
12.2 Unless such written claim is received by Atomik Arts within the specified period, the Consumer shall be deemed to have accepted the condition of the goods, Content and/or services and, conformity of the goods and services and Content to the order.
12.3 Any claim in relation to a defect in goods or Content must be accompanied by both:
12.3.1 a specimen of the article showing the alleged defect; and
12.3.2 a sample taken from the consignment in its original packaging showing the references used for identification purposes.
12.4 Notwithstanding that a claim has been made by the Consumer, the Consumer shall pay for the goods and/or services and/or Content pending determination of the claim by Atomik Arts.
13. RETURNS
13.1 No goods or Content shall be returned to Atomik Arts by the Consumer without the written consent of Atomik Arts. By applicable legislation, Atomik Arts are under no obligation to accept return of goods or Content, neither are Atomik Arts obligated to provide a refund of monies paid. The Customer (if transacting with Atomik Arts from within Western Australia) retains all relevant and applicable rights as prescribed by the Department of Consumer and Employment Protection and any other applicable legislation as prescribed and modified by the Government of Western Australia.
13.2 If Atomik Arts consents to the return of goods or Content, Atomik Arts shall not be required to accept such goods by way of return unless:
13.2.1 The delivery charge for the return to Atomik Arts of the goods or Contents are first paid by the Consumer;
13.2.2 The goods or Content are unused, undamaged, in their original packaging, have not been redistributed, stored in any format or published, transmitted or re-sold, by any means, removed from any form of storage medium; and
13.2.3 The goods or Content and the packaging are as new and in a saleable condition with only their original marks, numbers unaltered and prices not marked thereon if applicable.
14. LIMITATION OF LIABILITY
14.1 Subject to any express written warranty otherwise given by Atomik Arts, and subject to any statutory warranties express or implied which by law cannot be excluded, all warranties conditions and representations, whether express or implied are expressly excluded. Where a warranty or condition is implied by law, Atomik Arts’ liability is to the extent that same can be so limited, is limited to one of the following at Atomik Arts’ discretion in the case of goods:
14.1.1 Replacement of goods or supply of equivalent goods or supply of the service or Content again;
14.1.2 Repair of goods or Content;
14.1.3 Payment of costs of replacing the goods or acquiring equivalent goods or Content; or
14.1.4 Payment of the cost of having the goods or Content repaired or supplying the services again.
14.2 Atomik Arts and its directors, officers, employees, sub contractors, distributors and associated entities and individuals, shall have no liability (including liability in negligence) to any person or entity for any loss or damage, consequential or otherwise, howsoever suffered or incurred by any such person of and incidental to the goods or Content sold by Atomik Arts to the Consumer, and without limiting the generality thereof, any loss or damage consequential or otherwise suffered or incurred by any such person caused by or caused directly or indirectly from any late or non-delivery, any failure, defect or deficiency of whatsoever nature or kind incidental to the goods or services or Content, or associated with delayed and non-delivery and whether or not if the same occurs in the course of the performance by Atomik Arts of any contract or in circumstances which are foreseeable by Atomik Arts or in circumstances which would constitute a fundamental breach of any contract or a breach of any fundamental term hereof.
14.3 The Consumer and its directors hereby indemnifies and keeps indemnified Atomik Arts and its directors, officers, and employees and associated companies (to the extent permissible by law) in respect of any loss or damage consequential or otherwise howsoever suffered or incurred by any person or incidental to any occurrence referred to in the previous paragraph.
14.4 Atomik Arts shall not be liable for failure to observe or perform in accordance with these T&Cs for any reason or cause which was not within its control, including without limitation, war, insurrection, riot, civil commotion, strikes, lock outs, labour or industrial disputes, acts of God, acts of Governments, flood, storm, tempest, power shortages or power failure, inability to obtain sufficient labour, raw materials, fuel or utilities.
15. CONSUMER’S DETAILS
15.1 The Consumer shall forthwith give notice to Atomik Arts of the change of address, telephone number, facsimile numbers or address for delivery to the Consumer not later than 7 days prior to such change occurring.
15.2 The Consumer shall inform Atomik Arts of any changes in the ownership of the Consumer within 14 days of such change, whether total or partial by giving notice in accordance with clause 16 herein forwarding to Atomik Arts notice in writing of that change to Atomik Arts’ registered address or via http://atomikarts.com/contact.
15.3 Until such notice is received by Atomik Arts, the Consumer and or entities or trustees, shall hold Atomik Arts indemnified, against all losses, unpaid accounts, interest, damages, costs, charges, fees and expenses of whatsoever nature incurred or suffered by Atomik Arts in trading with any person, Consumer, individual or entity (including a trust) which may have purchased the Consumer’s business or any interest therein or any of the shares in the Consumer and used the Consumer’s previously approved credit account for trading.
16. NOTICES
16.1 Any notice, demand or other communication given or made under these T&Cs must be in writing to Atomik Arts:
16.1.1 By an authorised officer of the sender or Consumer and delivered to the intended recipient by prepaid post, hand or electronic mail to the address or location last notified by the intended recipient to the sender, signed by an authorised officer,
16.1.2 If given or made by the Consumer, signed by the Consumer or an authorised officer, and
16.1.3 Delivered to the intended recipient by prepaid post, hand or electronic mail to the address last notified by the intended recipient to the sender,
16.2 Such notices will be taken to have been given or made:
16.2.1 In the case of delivery by post, three days after the date of posting;
16.2.2 In the case of delivery by hand or electronic mail, when delivered.
16.3 Any notice, demand or other communication may also be given or made in accordance with any method, procedure or requirement permitted under any applicable law.
17. LICENSE AGREEMENT
17.1 This license agreement controls your right to use any Content supplied by Atomik Arts and Adam Mazur or the accredited photographer or designer for the purposes listed below.
17.2 This Agreement is a legal contract that specifies the terms of the license and warranty and liability limitations between you and Atomik Arts for any Content supplied by Atomik Arts. You agree to be bound by the terms hereof by accepting or using, Consuming or facilitating an activity whereby there is unauthorised use of any Content.
17.3 IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER, THE LICENSE GRANTED AND RESTRICTIONS AND LIMITATIONS PRESCRIBED HEREIN APPLY TO YOUR EMPLOYER AS WELL AS TO YOU AS A REPRESENTATIVE OF YOUR EMPLOYER. SHOULD YOU CEASE EMPLOYMENT FOR YOUR EMPLOYER, YOUR EMPLOYER MAY CONTINUE TO OPERATE UNDER THIS AGREEMENT.
17.4 IN CONSIDERATION of the payment of the fees stated for accepting one or more articles of Content from Atomik Arts, and in further consideration of your acceptance of the provisions of this agreement, Atomik Arts hereby grants you a personal, non-transferable, non-exclusive, limited right to use such Content subject to the following terms and conditions:
18 PERMISSIBLE USES AND CONSUMPTION
18.1 You are licensed to use the Content worldwide, for the following purposes ONLY, pending prior, written consent and approval of Atomik Arts:
· Not-for profit Editorial, or publication of photographing images and content for NON-COMMERCIAL PURPOSES and PERSONAL (including social-networking) web sites.
· The Content itself (themselves) may not be copied, distributed, published, re-sold or otherwise be involved in an unauthorised, unapproved activity or used other than as set forth above. Under no circumstances shall the Content be used for pornographic, libellous, defamatory or any other improper or illegal purposes.
18.2 Atomik Arts give no representations or warranties with respect to the use of names, trademarks, logos, uniforms, registered or copyrighted designs or works of art depicted in any Content, and you must satisfy yourself that all necessary rights, consents or permissions as may be required for reproduction are secured.
18.3 “Non-transferable” as used above, means that the work you produce using any Content must be for your own PERSONAL use, or for the PERSONAL use of your employer, client or customer, who must be the end-user of your work. You may not sell, rent, loan, give, sublicense or in anyway transfer, transmit, submit, publish to anyone any Content, or the right to use them, except as described under “Permissible Uses” and in these T&Cs.
18.4 You may not grant any third party the right to use, store, publish, duplicate, transmit, distribute any Content. You agree to take all reasonable steps to prevent third parties from engaging in any activity that violates these Terms and Conditions and/or all applicable and relevant legislation. You may not provide or display any Content from this site or any of Atomik Arts’ sites, on any electronic bulletin board, online in a downloadable format, published in any form, tangible or intangible, or use the images in a website at a resolution higher than that which is supplied.
18.5 Also any Content that has been published by Atomik Arts must not be modified, altered or otherwise manipulated in a way that removes any likeness of its original form, function, purpose and appearance, so as to purport it to be the work of the Consumer, or any other individual, entity or organisation.
19 COPYRIGHT
19.1 The Content of Atomik Arts on this and other authorised, licensed web sites, and any Content in the public domain, distributed, published, unpublished, released by and/or supplied by Atomik Arts’ are copyrighted and protected by the intellectual property laws of the Commonwealth of Australia and the Berne Convention.
19.2 The use of Content (sold or exclusively licensed for viewing in the public domain via approved outlets) is licensed and they remain the sole and exclusive property of Atomik Arts and Adam Mazur or the accredited photographer/designer. Use (of any form) of Content without prior payment (or exclusive written consent from Atomik Arts) is both a copyright violation and a violation of these Terms and Conditions, In some cases, other applicable legislation may also be violated and so it is the Consumer’s responsibility to be fully aware of their rights and the implications and penalties that apply when an illegal activity or violation of copyright has occurred.
19.3 All Content is owned by Atomik Arts and Adam Mazur or the accredited photographer or designer and is protected by Copyright law, and bound by the laws in force in the Commonwealth of Australia. No title to or intellectual property rights to the Content is transferred to you or the Consumer.
Atomik Arts and Adam Mazur or the accredited photographer or designer retain all rights not expressly granted by this License Agreement. All rights to the Content are owned by Atomik Arts and Adam Mazur or the accredited photographer or designer and are protected by Australian copyright laws, international treaties and other applicable laws. Atomik Arts retains any and all rights, titles, intellectual property and interests not expressly granted by this license agreement. You must not transfer, assign or sublicense the Content without the prior written consent of Atomik Arts. Any attempt to transfer or assign this license without prior written consent to do so shall automatically terminate this license and amount to a violation of these terms, breach of contract and the law. In cases of violation of these Terms and Conditions, copyright, trademark, patent or intellectual property of Atomik Arts Content, Atomik Arts reserves the right to seek recovery of all costs, damages, royalties, lost revenue and monies and may seek legal action to recover such losses that the Consumer has taken liability for in its violation of these Terms and Conditions and/or any relevant and applicable legislation.
19.4 Content of Atomik Arts shall bear an approved watermark that is in accordance with item 20.1 of these T&C’s (below). The only exceptions to this term are when Content is supplied: in printed media purchased from Atomik Arts; or from a commercial product photo session (see item 19.5, below); or when images or Content have been supplied under the terms of an exclusive licensing agreement for further distribution and/or publication and/or syndication after the payment of royalties.
19.5 For the purposes of photographic images captured in a commercial product photo session, whereby the Client has ordered and paid monies due for images to be used in Limited Distribution, Atomik Arts reserve the right to supply images with or without the standard watermarks & visible copyright protections, and at it’s sole discretion, may provide full resolution images for promotional purposes within a Limited Distribution. Where there is any ambiguity, all other sections and components of these T&Cs and applicable legislation are upheld.
20 EDITORIAL PHOTO CREDITS AND COPYRIGHT
20.1 Pending prior, written consent and approval of Atomik Arts, any editorial use and Consumption of the Content must bear the credit line “Atomik Arts” and/or “Adam Mazur” or the name of the accredited photographer or designer. In the case of photographic images, credit must be provided either within the visual boundaries of each image as a credit line or approved watermark, or within the caption or in the immediate visual vicinity of the image used. You agree to provide statutory copyright protection of the Content by timely registration of the work you create or the work in which Atomik Arts’ Content appears.
21 ADDITIONAL RIGHTS
21.1 If you are unsure of your usage rights under this agreement or wish to use the image in a manner not permitted by this agreement (for example: as part of an advertisement, published (tangible or non-tangible) media, point-of-sale material, packaging, press release, stock etc), please contact us via http://atomikarts/contact.
21.2 If the Consumer does not make contact with Atomik Arts and make a reasonable request for consent and approval to use the Content, it is deemed that the Consumer has chosen to violate these Terms and Conditions and any applicable and relevant legislation, such as the Copyright Act. As such, Atomik Arts reserve the right to seek recovery of all costs, damages, royalties, lost revenue and monies and may seek legal action to recover such losses that the Consumer has taken liability for, in its activities that violate these Terms and Conditions and/or any relevant and applicable legislation.
22 USER WARRANTIES
22.1 You warrant that you will take all necessary steps to prohibit and prevent unauthorised use, distribution, publishing, sale, transmission, storage or any activity that duplicates or distributes Atomik Arts’ Content.
23 ATOMIK ARTS WARRANTIES
23.1 Atomik Arts warrants that the supplied Content is shall free from material defects in material and workmanship for seven (7) days from the time of delivery.
23.2 Your sole and exclusive remedy for a breach of this warranty shall be the replacement of the Content, or exchange or a discount of the purchase price, at the sole discretion of Atomik Arts.
23.3 Atomik Arts MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY HEREBY EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Some countries/states do not permit the exclusion of implied warranties and you may have other rights, which vary from place to place.
24 DAMAGES
24.1 IN NO CASE SHALL ATOMIK ARTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES OR LOSS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, WHETHER SUCH DAMAGES ARE BASED UPON A BREACH OF EXPRESS OR IMPLIED WARRANTIES, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THIS IS TRUE EVEN IF ATOMIK ARTS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL ATOMIK ARTS ‘ LIABILITY UNDER ANY LEGAL THEORY EXCEED THE AMOUNT OF THE LICENSE FEE ACTUALLY PAID BY YOU TO ATOMIK ARTS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
24.2 The limitations or exclusions or warranties and liability contained in this agreement do not effect or prejudice the statutory rights of the Consumer. Atomik Arts shall not be liable for any general, special, direct, indirect, incidental or consequential damages arising out of the license and use of the Content.
25 LEGAL COSTS AND JURISDICTION
25.1 In the event that either a court of competent jurisdiction directs Atomik Arts to go to court, or the matter involves copyright, trademarks, patents or intellectual property, you agree to fully reimburse Atomik Arts and Adam Mazur for its reasonable legal fees and disbursements if Atomik Arts and Adam Mazur are successful in the suit.
25.2 YOUR ACCEPTANCE, USE AND CONSUMPTION OF ANY CONTENT CONSTITUTES YOUR CONSENT TO AND ACCEPTANCE OF THE FOREGOING LICENSE.
26 GOVERNING LAW AND GENERAL PROVISIONS
26.1 This Agreement will be governed by the laws in force in the Commonwealth of Australia excluding the application of its conflicts of law rules.
26.2 This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
26.3 If any part of this Agreement is found void and is not enforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
26.4 You agree that neither the Contents nor the products will be shipped, transferred or exported into any country or used in any manner prohibited by export administration legislation or any other export laws, restrictions or regulations.
27 GIFT CERTIFICATES
27.1 Gift Certificates and their Use, issue and redemption, are subject to these T&Cs.
27.2 Gift Certificates are valid for redemption towards payment of Content, goods and/or services to the monetary value indicated, or as may be the case from time to time, to the monetary value (at the time of issue) of the Content, goods and/or services that are stated on the voucher for redemption. For example, in cases where discretion is requested by the Consumer, the name of an Atomik Arts package, good and/or service may be stated instead of a monetary value. Value stated is inclusive of GST.
27.3 Gift Certificates are valid upto and including the expiry date stated on the Certificate.
27.4 Gift Certificates are not redeemable for cash.
27.5 Gift Certificates are not transferable.
27.6 Gift Certificates are non-refundable as per the Section 13.1 stated above.
27.7 Multiple Gift Certificates can be used in one transaction, however the monetary value of the Gift Certificates indicates a minimum spend. If the value of a transaction is greater than the value of the Gift Certificate (or sum of multiple Gift Certificates) then the Consumer is required to provide payment on the balance of monies due, as per Section 5 stated above.
27.8 Atomik Arts will not be liable for lost or stolen Gift Certificates.
27.9 Gift Certificates are each for single-use only and must be surrendered at the time of redemption.
28 CODE OF ETHICS
28.1 Atomik Arts endorse and operate in accordance with an industry-standard Code of Ethics as outlined by relevant industry bodies.
28.2 As a member of the Design Institute of Australia “DIA”, Atomik Arts endorse and operate in accordance with the DIA’s Code of Ethics, a copy of which is available upon request.
28.3 As a member of the Australian Institute of Professional Photography “AIPP”, Atomik Arts endorse and operate in accordance with the AIPP’s Code of Ethics, a copy of which is available upon request.
28.4 The active participation in leading industry bodies, in addition to being open to and acting upon feedback, is Atomik Arts’ promise to Clients to provide the most professional and ethical service and to ensure that customer satisfaction and a high quality outcome is achieved at all times.
MISCELLANEOUS
M1 These T&Cs shall be governed by and interpreted in accordance with the laws of Western Australia (or as applicable, federal legislation of the Commonwealth of Australia) and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that jurisdiction and any appeal courts from them.
M2 The Consumer and its directors declare that the goods and/or services and/or Content to be provided by Atomik Arts are to be used wholly or predominantly for personal purposes (or as applicable to Content manufactured using the four-colour print process, for business and/or investment purposes, or for both purposes).
M3 The Consumer acknowledges and agrees that Atomik Arts may assign all of its rights, benefits and interests under this Agreement to any other entity as nominated by Atomik Arts. Any such assignment by Atomik Arts shall not prejudice or affect the rights, claims or interests of the Consumer or Atomik Arts which have accrued up to the date of assignment.
M4 The Consumer shall not assign, transfer or novate its rights and obligations under this Agreement, without the prior written consent of Atomik Arts, in Atomik Arts’ absolute discretion.
M5 If any provision of these T&Cs is, for any reason, wholly or partly held to be illegal, void, invalid or unenforceable by a court of law or other competent authority, that provision shall be severed in the relevant jurisdiction and all other provisions of the T&Cs shall continue in full force and effect.
M6 No failure to exercise, nor any delay in exercising, any right, power or remedy by Atomik Arts operates as a waiver. A single or partial exercise by Atomik Arts of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on Atomik Arts unless in writing. Atomik Arts’ rights, powers and remedies under these T&Cs are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or by any other agreement or instrument.
M7 The Consumer consents to the use of any Personal Information of its employees, officers or agents, for the purposes set out in the Privacy Act legislation, including but not limited to the Consumer’s or its director’s credit history.
M8 Atomik Arts shall not under any circumstances be responsible to the Consumer for any failure to comply with its obligations under this Agreement or any other relevant Agreement, pursuant to any order that is accepted, which failure is caused by an act of God, acts of any Government, war or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes or lockout, inability to obtain necessary supplies and the like and other force majeure occurrences.
M9 Where an event or function is being covered by Atomik Arts, one model release form will be completed and accepted as model release for all people captured in photographs. Atomik Arts will assume that all people captured in the photographs are collectively in agreement to the Model Release and are bound, as such, to the Agreement and Atomik Arts will reserve all rights.
M10 Using of Content downloaded, stored, redistributed, published, transmitted or otherwise used from the Atomik Arts website and relevant websites, online and printed media, constitutes an agreement to be bound by these T&Cs.
M11 All Content is protected by Copyright and as applicable, by Trademarks, Patents and otherwise relevant agreements and legislation that offer protection of Atomik Arts’ intellectual property. All rights are reserved and owned by Atomik Arts and Adam Mazur or the accredited photographer or designer. The only rights granted are specifically listed below; All others are reserved. Your rights to use Atomik Arts’ Content is based on the restrictions stated in this Agreement (or in the case of any ambiguity, restrictions as stated in the applicable legislation), and are dependent upon your payment of the purchase price or royalties for the Content before use.
If you need more information on licensing, have a question about anything relating to these T&Cs or you are aware of a violation of these Terms and Conditions and applicable legislations, contact us via http://atomikarts.com/contact
All Rights Reserved.
ABN: 53 761 148 385
Acceptance of Quotations, Engaging in our Services, Orders for our Products, Consumption of Atomik Arts’ Content, Payment of Invoices and redemption of Gift Certificates constitute an agreement and adherence to these Terms and Conditions and other relevant documents such as the Atomik Arts Terms of Payment.
Furthermore, Consumers of Atomik Arts’ Content are bound to agreement and adherence to these Terms and Conditions herein and other relevant documents and applicable legislation, such as the Copyright Act and others.
1. DEFINITIONS
1.1 “Atomik Arts” means Atomik Arts ABN 53 761 148 385 of the address as registered with the Australian Business Register, operating from Perth, Western Australia. “Atomik Arts” includes Adam Mazur and his related or associated entities, agents, subcontractors and franchisees.
1.2 The term “Content” means any images, photographs, digital media, works, designs, concepts, plans, proposals, communications, samples, galleries, sites, storage, archival, commercially sensitive information, locations and other goods and services, tangible and intangible, owned, created, manufactured, distributed, exhibited, displayed, sold, communicated by Atomik Arts.
1.3 The “Consumer” means the party placing an order for the purchase of goods or services or Content from Atomik Arts and any party, individual, organisation, entity and otherwise, engaging directly or indirectly, in the consumption, use, viewing, distribution, sale, production or any other activity relating to goods and services and Content of Atomik Arts.
1.4 An “Order” refers to an order for goods or services. An Order also refers to Quotations.
2. ACTING IN RELIANCE
2.1 The Consumer warrants that the information provided by the Consumer is true and correct. The Consumer acknowledges that Atomik Arts will act in reliance on this information.
2A. APPLICATION OF TERMS AND CONDITIONS
2A.1 These Terms and Conditions (“T&Cs”) apply to each and every dealing between the parties Atomik Arts and the Consumer, and the Consumer agrees to adhere to, and be bound to these Terms and Conditions and that they will prevail over any other verbal, implied or written conditions, whether verbal, implied or written to the extent permitted by law.
2A.2 These T&Cs are correct as of 1st December 2009 and may be updated by Atomik Arts as required, from time to time and the current version of the T&Cs herein, shall be binding upon the Consumer. See http://atomikarts.com/info/terms for the current version.
3. ORDERS
3.1.1 Orders are subject to acceptance in accordance with these T&Cs. Orders are subject to acceptance by Atomik Arts in whole or in part.
3.1.2 An order shall also include any dealings or activities that directly or indirectly violate these T&Cs, such as unauthorised and unlicensed Consumption on Atomik Arts’ Content.
3.1.3 Engaging in Atomik Arts’ services and reciept of Atomik Arts’ goods and Content constitute an order and thus forms an acceptance by the consumer to be bound by these T&C’s and any additional written agreements, terms and licensing agreements that Atomik Arts supply to the Consumer before commencement of work or before supply of any goods or Content.
3.1.4 It is the Consumer’s responsibility to ensure that the electronic files supplied comply with Atomik Arts’ file specifications requirements and that the files supplied are correct and able to be printed as soon as they are supplied. Files supplied without ‘bleed’ will be printed as they are supplied under the assumption that this is the Consumer’s requirement, unless the Consumer advises Atomik Arts otherwise. It is the Consumer’s responsibility to ensure that any materials supplied for printing do not breach relevant copyright legislation. Atomik Arts accepts no responsibility for any copyright issues. No assumptions or judgements are made by Atomik Arts in relation to the correctness or acceptability of any electronic files supplied to us. Electronic files are printed as supplied by the Consumer and there will be variations between finished printed products and the same file being printed on various proofing devices (i.e. Inkjet printers and the like). Consumers must also understand that our printing process will result in colour variations between orders and exact colour matching cannot and will not be provided by Atomik Arts. Colour variations will occur from job to job and run to run. This is a normal occurrence using industry-standard printing methods, which Atomik Arts follow in line with our strict quality control procedures.
Please advise Atomik Arts accordingly where an exact colour match is critical and required or if the Consumer is uncertain with any aspect of your supplied electronic files. Electronic files may be kept and stored by Atomik Arts for future use by the Consumer should they be required in the future, however, Electronic files must be supplied with each and every order. It is also the Consumer’s responsibility to understand the nature of the various stocks that we print on and the impact of different finishing options will have on that stock (i.e. appearance and texture). Atomik Arts assumes that its Consumers are fully aware of this impact before any orders are placed. Atomik Arts accept no responsibility whatsoever for any cracking or peeling caused by folding of brochures or the like. This also applies to published and printed media such as photo albums, prints, ready-to-hang products and any other product that Atomik Arts may have on offer. NO REFUNDS OR REPRINTS will be provided for any breaches of the Consumer’s responsibility contained within this clause. For photo albums, contact Atomik Arts if there are any issues within 30 days on receipt of your photo album should there be any issues with the construction or physical assembly of the album. A reprint may be offered, solely at the discretion of Atomik Arts.
3.2 The Consumer must place a written order setting out full details of all of their requirements, in writing. Atomik Arts will not be responsible for any mistakes that may be attributable to insufficient or lack of written details. The Consumer will be required to pay for such goods ordered by mistake.
3.3 Atomik Arts reserves the right to impose minimum order requirements at anytime which may be changed by Atomik Arts from time to time.
3.4 No order may be cancelled except with the written consent of Atomik Arts.
3.5 If the Consumer purports to cancel any order, such conduct may be treated as a repudiation of the contract, the terms and conditions as stated on the invoice and these T&Cs. The Consumer shall pay Atomik Arts all losses, damages, costs and expenses incurred or suffered by Atomik Arts as a result of such conduct (Minimum $20 cancellation fee regardless of circumstances will be incurred by Consumer).
3.6 Orders shall not be varied unless the variation has been approved in writing by Atomik Arts.
3.7 Atomik Arts or the manufacturer of the goods (“the Manufacturer”) may, without notice, change the range of goods and services or redesign or modify existing goods or services resulting in some goods becoming obsolete or unavailable and Atomik Arts or the Manufacturer shall not be liable for any loss or damage suffered by the Consumer or the Consumer’s Consumers as a result. The Consumer undertakes to advise any person or company to whom it sells any goods of this condition.
4. ACCEPTANCE OF ORDERS
4.1 An Order will be deemed to have been accepted by Atomik Arts upon transmission at the earlier of:
4.1.1 such order to Atomik Arts (ABN 53 761 148 385) receipt of payment for the goods or services to Atomik Arts; or
4.1.2 despatch of the goods from, or commencement of services, or release, publication, transmission or activity that facilitates Content being submitted by, Atomik Arts.
4.2 No orders may be varied or cancelled by the Consumer after acceptance; unless agreed to by Atomik Arts, on terms and conditions set by Atomik Arts. Quotations may be prepared and re-issued after expiry, as shown on the Quotation, however Atomik Arts reserve the right to change, alter and modify any aspect, condition and offer in its Quotations.
5. PAYMENT
5.1 The Content must be paid for in full at the time of placing the order for the goods or services by the Consumer. Atomik Arts does not grant credit to its Consumers unless otherwise agreed to in writing between the relevant parties.
5.2 Atomik Arts may require an amount be paid by the Consumer as a non-refundable deposit, which constitutes a part payment of due moneys. Refer to the current version of the Atomik Arts Terms of Payment, which is attached to each invoice. Payment for goods and services and content must be received by the methods on offer, as stated on the current version of the Terms of Payment, as attached to each invoice. Payment is to be received by Atomik Arts at the time of placing the order for the goods and services and Content with Atomik Arts.
5.3 Atomik Arts may not be obliged to hand over, deliver, transmit, supply, exchange, publish, distribute or otherwise engage in an activity that releases the goods or content, or perform services until all monies owing and overdue to Atomik Arts by the Consumer, including for any prior orders, are paid to Atomik Arts and shall not be responsible for any loss or damage suffered by the Consumer as a result.
5.4 If Atomik Arts agree in writing, and in its absolute discretion, to grant credit or open an account to the Consumer, the Consumer must complete a Credit Application and provide security and guarantees as required by Atomik Arts.
6. PRICES AND RESALE PRICES
6.1 Atomik Arts’ price lists or quotations do not constitute an offer.
6.2 Quotations are given and orders are accepted only on the basis that the prices charged will be those applicable at the date of the quotation being accepted or otherwise an order being despatched, ex Atomik Arts. All prices are subject to change without notice.
6.3 Prices may be inclusive of costs of delivery of the goods to the Consumer in the Perth Metropolitan Area, and any applicable goods and services tax. In the case of printed media such as business stationery, magazines and other Content published, manufactured and distributed by Atomik Arts using the four-colour process (CMYK), the cost of delivery for goods are included in the prices, unless otherwise noted.
6.4 All prices are subject to change without notice.
6.5 Recommended and suggested resale or retail prices wherever shown are recommended resale or retail prices only and there is no obligation to comply with any recommendation or suggestion.
6.6 The Consumer shall in addition to any monies otherwise payable hereunder pay any applicable goods and services taxes (or its equivalent) in respect of any goods and/or services purchased.
6.7 All prices stated, quoted, invoiced, in price-lists for Atomik Arts’ Content, goods and services are in Australian Dollars (AUD).
7. MODIFICATIONS
7.1 Atomik Arts are not obliged to attend to any modifications or variations to the goods, services and Content, unless agreed in writing by Atomik Arts.
7.2 If any modifications to the goods, services and Content are required to comply with the regulations or laws of the State or Country in which the Consumer is located and/or in which the Content is to be resold or used by the Consumer, each order must include clear instructions detailing the required modifications.
7.3 The Consumer must not modify the goods and Content in any way, other than with the written consent of Atomik Arts and in strict compliance with instructions supplied by Atomik Arts.
7.4 Atomik Arts shall not be liable for any loss or damage suffered by the Consumer or any third party of or incidental to any form of Modifications.
7.4.1 If Atomik Arts agrees to undertake any modifications or variations to the Content in accordance with a request by the Consumer and if the instructions or information supplied by the Consumer are incorrect, incomplete or in any way ambiguous, Atomik Arts shall not be liable for any loss or damage including consequential loss or damage suffered by the Consumer or any third party of or incidental to the variations or modifications not complying with the Consumer’s requirements or not complying with the regulations, standards or laws to which the goods and Content and/or the Consumer are subject.
8. SHIPMENT AND SUPPLY
8.1 All representations by Atomik Arts as to the date and/or time for delivery are made in good faith, but are not guaranteed. All representations are made in good faith, in the light of conditions and circumstances that are known to Atomik Arts at the time.
8.2 Atomik Arts and its directors, officers, employees, sub contractors, distributors and associated entities and individuals shall not be held liable for late deliveries or non-deliveries and under no circumstances shall Atomik Arts be liable for any loss, or damage, including consequential loss or damage, or delay occasioned or suffered by, to the Consumer or its Consumers arising from late or non-delivery of goods or service, whether such loss or damage is due to negligence or wilful act, misconduct or default of Atomik Arts or any third party and whether or not if the same occurs in the course of the performance by Atomik Arts of any contract or in circumstances which are foreseeable by Atomik Arts or in circumstances which would constitute a fundamental breach of any contract or a breach of any fundamental term hereof.
8.3 Goods will normally be shipped by the most convenient and economical method and route having regard to the nature of the goods. Atomik Arts reserves the right to charge the Consumer for delivery. Content such as printed media, photographic Content, tangible or intangible, digital or otherwise, may be supplied electronically via a transmission or may be provided on a storage medium such as a disc, solely at the discretion of Atomik Arts. Atomik Arts reserves the right to charge the Consumer for delivery, supply of Content by means of a disc or for any reasonable costs otherwise incurred in order to deliver the Content to the Consumer.
8.4 If Atomik Arts was unable to deliver part of an order for any reason whatsoever, Atomik Arts may deliver by instalments. Each instalment shall be regarded as a separate contract and any defect in, or failure to deliver an instalment shall not give the Consumer the right to cancel the balance of deliveries due under the order.
8.5 The Consumer will upon receipt, inspect the goods and Content and notify Atomik Arts of any errors, issues or shortages within three days after delivery, quoting delivery docket numbers and all other relevant details.
9. DAMAGE OR LOSS IN TRANSIT
9.1 It shall be the responsibility of the Consumer to insure the goods and Content after despatch from Atomik Arts. Atomik Arts may suggest insurance or postal registration, but it is the Consumer’s responsibility to ensure that the insurance is adequate for the purpose. Atomik Arts shall not be liable for any loss or damage suffered during transit of the goods or Content to the Consumer.
10. TITLE AND RISK
10.1 Atomik Arts reserves all legal title and ownership in relation to the goods and Content until all monies owed by the Consumer to Atomik Arts are fully paid. In the case of Content which falls under the T&Cs and falls under the protection of The Copyright Act, Trademarks Act, Patents and any form of Intellectual Property that distinguishes and forms any part of the Content of Atomik Arts, Atomik Arts reserve legal title and ownership to the content for the period of time as offered by the exclusive agreement between the Consumer and Atomik Arts or as described by the relevant legislation. In cases where there is any ambiguity, refer to the current, relevant legislation as is applicable to the Content in question.
10.2 Until the legal ownership of the goods or Content has passed to the Consumer, the Consumer shall be a bailee of such goods in its possession but title for such goods remains with Atomik Arts.
10.3 If the goods or Content are resold, or products or services are manufactured, published, distributed, tangible or non-tangible, using the goods or Content as originally sold by the Consumer, the Consumer shall hold such part of the proceeds of any such sale and royalties as represents the invoice price of the goods or Content sold or used in the manufacture in a separate identifiable account as the beneficial property of Atomik Arts and shall pay such amounts to Atomik Arts upon request.
10.4 Notwithstanding the provisions above, Atomik Arts shall be entitled to maintain an action against the Consumer for the whole purchase price and any other loss suffered or incurred by Atomik Arts.
10.5 The Consumer shall have no claim against Atomik Arts for any damages or other monies whatsoever if Atomik Arts repossesses or attempts to repossess the goods and Content. The rights of Atomik Arts hereunder are in addition to any other claim or rights Atomik Arts has under any other term hereof or under any other contract between the parties.
10.6 Risk in the goods and Content supplied by Atomik Arts shall pass to the Consumer immediately on despatch by Atomik Arts and the Consumer shall keep the goods insured, safe and readily identifiable.
10.7 Atomik Arts reserve the right to request a deposit or full pre-payment for goods and/or services, in order to secure a booking and/or in order to secure commencement of work for an order/project. Goods and Services that require a deposit or full pre-payment are clearly indicated on the pricing pages and tables (see http://www.atomikarts.com/info/pricing for specific goods and/or services requiring a deposit or full pre-payment).
10.8 Atomik Arts reserve the right to withhold the supply, distribution, publication, retrieval, upload, capture and delivery of content, goods and/or services if the Client has not secured their booking with a deposit (of full pre-payment where applicable) or if the Client has refused to provide payment for moneys due, as indicated on the respective invoice and related agreements, inclusive of overdue account interest (if applicable) where an invoice is unpaid beyond the Standard Terms of Payment.
10.9 Atomik Arts reserve the right to refuse to, or suspend, or postpone photographic coverage of an event, function, delivery and rendering of photographic services for packages Atomik Arts have on offer, if the Client has failed to secure a booking with a deposit (or full pre-payment where applicable). Likewise, Atomik Arts are obligated to render, supply, deliver and otherwise service and otherwise act upon the Client’s order once a booking has been secured (or full pre-payment where applicable) as soon as is practical for both Atomik Arts and the Client.
11. DEFAULT
11.1 In the event the Consumer is in default of any term or condition and such default has continued for a period of twenty-eight days, Atomik Arts shall, at its election at any time thereafter, be at liberty to cancel any or all orders yet to be completed and to recover from the Consumer any or all losses, damages, costs, interest, fees, charges (including handling charges payable to Atomik Arts and its suppliers) and all expenses incurred and suffered by Atomik Arts as a result of the Consumer’s default and the subsequent cancellation.
11.2 The Consumer shall have no recourse whatsoever against Atomik Arts for any loss or damaged suffered as a result of any such cancellation.
11.3 In the event that any monies are due and payable by the Consumer to Atomik Arts, but remain unpaid beyond the period stated in the current Terms of Payment, Atomik Arts may charge the Consumer and be paid interest on the outstanding balance from the due date until payment is received by Atomik Arts at a rate of 10% per calendar month or part thereof, and the Consumer will also pay to Atomik Arts, any costs and expenses (including recovery and legal expenses) that Atomik Arts incurs in enforcing these Terms and Conditions of Sale, any applicable legislation or any other Agreement that it has with the Consumer.
12. DEFECTS
12.1 Any claim by the Consumer relating to any defect in manufacture of goods or Content, or any shortage or other nonconformity to an order for goods or services shall be made in writing to Atomik Arts at its registered address, within 3 days of delivery of the goods or services.
12.2 Unless such written claim is received by Atomik Arts within the specified period, the Consumer shall be deemed to have accepted the condition of the goods, Content and/or services and, conformity of the goods and services and Content to the order.
12.3 Any claim in relation to a defect in goods or Content must be accompanied by both:
12.3.1 a specimen of the article showing the alleged defect; and
12.3.2 a sample taken from the consignment in its original packaging showing the references used for identification purposes.
12.4 Notwithstanding that a claim has been made by the Consumer, the Consumer shall pay for the goods and/or services and/or Content pending determination of the claim by Atomik Arts.
13. RETURNS
13.1 No goods or Content shall be returned to Atomik Arts by the Consumer without the written consent of Atomik Arts. By applicable legislation, Atomik Arts are under no obligation to accept return of goods or Content, neither are Atomik Arts obligated to provide a refund of monies paid. The Customer (if transacting with Atomik Arts from within Western Australia) retains all relevant and applicable rights as prescribed by the Department of Consumer and Employment Protection and any other applicable legislation as prescribed and modified by the Government of Western Australia.
13.2 If Atomik Arts consents to the return of goods or Content, Atomik Arts shall not be required to accept such goods by way of return unless:
13.2.1 The delivery charge for the return to Atomik Arts of the goods or Contents are first paid by the Consumer;
13.2.2 The goods or Content are unused, undamaged, in their original packaging, have not been redistributed, stored in any format or published, transmitted or re-sold, by any means, removed from any form of storage medium; and
13.2.3 The goods or Content and the packaging are as new and in a saleable condition with only their original marks, numbers unaltered and prices not marked thereon if applicable.
14. LIMITATION OF LIABILITY
14.1 Subject to any express written warranty otherwise given by Atomik Arts, and subject to any statutory warranties express or implied which by law cannot be excluded, all warranties conditions and representations, whether express or implied are expressly excluded. Where a warranty or condition is implied by law, Atomik Arts’ liability is to the extent that same can be so limited, is limited to one of the following at Atomik Arts’ discretion in the case of goods:
14.1.1 Replacement of goods or supply of equivalent goods or supply of the service or Content again;
14.1.2 Repair of goods or Content;
14.1.3 Payment of costs of replacing the goods or acquiring equivalent goods or Content; or
14.1.4 Payment of the cost of having the goods or Content repaired or supplying the services again.
14.2 Atomik Arts and its directors, officers, employees, sub contractors, distributors and associated entities and individuals, shall have no liability (including liability in negligence) to any person or entity for any loss or damage, consequential or otherwise, howsoever suffered or incurred by any such person of and incidental to the goods or Content sold by Atomik Arts to the Consumer, and without limiting the generality thereof, any loss or damage consequential or otherwise suffered or incurred by any such person caused by or caused directly or indirectly from any late or non-delivery, any failure, defect or deficiency of whatsoever nature or kind incidental to the goods or services or Content, or associated with delayed and non-delivery and whether or not if the same occurs in the course of the performance by Atomik Arts of any contract or in circumstances which are foreseeable by Atomik Arts or in circumstances which would constitute a fundamental breach of any contract or a breach of any fundamental term hereof.
14.3 The Consumer and its directors hereby indemnifies and keeps indemnified Atomik Arts and its directors, officers, and employees and associated companies (to the extent permissible by law) in respect of any loss or damage consequential or otherwise howsoever suffered or incurred by any person or incidental to any occurrence referred to in the previous paragraph.
14.4 Atomik Arts shall not be liable for failure to observe or perform in accordance with these T&Cs for any reason or cause which was not within its control, including without limitation, war, insurrection, riot, civil commotion, strikes, lock outs, labour or industrial disputes, acts of God, acts of Governments, flood, storm, tempest, power shortages or power failure, inability to obtain sufficient labour, raw materials, fuel or utilities.
15. CONSUMER’S DETAILS
15.1 The Consumer shall forthwith give notice to Atomik Arts of the change of address, telephone number, facsimile numbers or address for delivery to the Consumer not later than 7 days prior to such change occurring.
15.2 The Consumer shall inform Atomik Arts of any changes in the ownership of the Consumer within 14 days of such change, whether total or partial by giving notice in accordance with clause 16 herein forwarding to Atomik Arts notice in writing of that change to Atomik Arts’ registered address or via http://atomikarts.com/contact.
15.3 Until such notice is received by Atomik Arts, the Consumer and or entities or trustees, shall hold Atomik Arts indemnified, against all losses, unpaid accounts, interest, damages, costs, charges, fees and expenses of whatsoever nature incurred or suffered by Atomik Arts in trading with any person, Consumer, individual or entity (including a trust) which may have purchased the Consumer’s business or any interest therein or any of the shares in the Consumer and used the Consumer’s previously approved credit account for trading.
16. NOTICES
16.1 Any notice, demand or other communication given or made under these T&Cs must be in writing to Atomik Arts:
16.1.1 By an authorised officer of the sender or Consumer and delivered to the intended recipient by prepaid post, hand or electronic mail to the address or location last notified by the intended recipient to the sender, signed by an authorised officer,
16.1.2 If given or made by the Consumer, signed by the Consumer or an authorised officer, and
16.1.3 Delivered to the intended recipient by prepaid post, hand or electronic mail to the address last notified by the intended recipient to the sender,
16.2 Such notices will be taken to have been given or made:
16.2.1 In the case of delivery by post, three days after the date of posting;
16.2.2 In the case of delivery by hand or electronic mail, when delivered.
16.3 Any notice, demand or other communication may also be given or made in accordance with any method, procedure or requirement permitted under any applicable law.
17. LICENSE AGREEMENT
17.1 This license agreement controls your right to use any Content supplied by Atomik Arts and Adam Mazur or the accredited photographer or designer for the purposes listed below.
17.2 This Agreement is a legal contract that specifies the terms of the license and warranty and liability limitations between you and Atomik Arts for any Content supplied by Atomik Arts. You agree to be bound by the terms hereof by accepting or using, Consuming or facilitating an activity whereby there is unauthorised use of any Content.
17.3 IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER, THE LICENSE GRANTED AND RESTRICTIONS AND LIMITATIONS PRESCRIBED HEREIN APPLY TO YOUR EMPLOYER AS WELL AS TO YOU AS A REPRESENTATIVE OF YOUR EMPLOYER. SHOULD YOU CEASE EMPLOYMENT FOR YOUR EMPLOYER, YOUR EMPLOYER MAY CONTINUE TO OPERATE UNDER THIS AGREEMENT.
17.4 IN CONSIDERATION of the payment of the fees stated for accepting one or more articles of Content from Atomik Arts, and in further consideration of your acceptance of the provisions of this agreement, Atomik Arts hereby grants you a personal, non-transferable, non-exclusive, limited right to use such Content subject to the following terms and conditions:
18 PERMISSIBLE USES AND CONSUMPTION
18.1 You are licensed to use the Content worldwide, for the following purposes ONLY, pending prior, written consent and approval of Atomik Arts:
· Not-for profit Editorial, or publication of photographing images and content for NON-COMMERCIAL PURPOSES and PERSONAL (including social-networking) web sites.
· The Content itself (themselves) may not be copied, distributed, published, re-sold or otherwise be involved in an unauthorised, unapproved activity or used other than as set forth above. Under no circumstances shall the Content be used for pornographic, libellous, defamatory or any other improper or illegal purposes.
18.2 Atomik Arts give no representations or warranties with respect to the use of names, trademarks, logos, uniforms, registered or copyrighted designs or works of art depicted in any Content, and you must satisfy yourself that all necessary rights, consents or permissions as may be required for reproduction are secured.
18.3 “Non-transferable” as used above, means that the work you produce using any Content must be for your own PERSONAL use, or for the PERSONAL use of your employer, client or customer, who must be the end-user of your work. You may not sell, rent, loan, give, sublicense or in anyway transfer, transmit, submit, publish to anyone any Content, or the right to use them, except as described under “Permissible Uses” and in these T&Cs.
18.4 You may not grant any third party the right to use, store, publish, duplicate, transmit, distribute any Content. You agree to take all reasonable steps to prevent third parties from engaging in any activity that violates these Terms and Conditions and/or all applicable and relevant legislation. You may not provide or display any Content from this site or any of Atomik Arts’ sites, on any electronic bulletin board, online in a downloadable format, published in any form, tangible or intangible, or use the images in a website at a resolution higher than that which is supplied.
18.5 Also any Content that has been published by Atomik Arts must not be modified, altered or otherwise manipulated in a way that removes any likeness of its original form, function, purpose and appearance, so as to purport it to be the work of the Consumer, or any other individual, entity or organisation.
19 COPYRIGHT
19.1 The Content of Atomik Arts on this and other authorised, licensed web sites, and any Content in the public domain, distributed, published, unpublished, released by and/or supplied by Atomik Arts’ are copyrighted and protected by the intellectual property laws of the Commonwealth of Australia and the Berne Convention.
19.2 The use of Content (sold or exclusively licensed for viewing in the public domain via approved outlets) is licensed and they remain the sole and exclusive property of Atomik Arts and Adam Mazur or the accredited photographer/designer. Use (of any form) of Content without prior payment (or exclusive written consent from Atomik Arts) is both a copyright violation and a violation of these Terms and Conditions, In some cases, other applicable legislation may also be violated and so it is the Consumer’s responsibility to be fully aware of their rights and the implications and penalties that apply when an illegal activity or violation of copyright has occurred.
19.3 All Content is owned by Atomik Arts and Adam Mazur or the accredited photographer or designer and is protected by Copyright law, and bound by the laws in force in the Commonwealth of Australia. No title to or intellectual property rights to the Content is transferred to you or the Consumer.
Atomik Arts and Adam Mazur or the accredited photographer or designer retain all rights not expressly granted by this License Agreement. All rights to the Content are owned by Atomik Arts and Adam Mazur or the accredited photographer or designer and are protected by Australian copyright laws, international treaties and other applicable laws. Atomik Arts retains any and all rights, titles, intellectual property and interests not expressly granted by this license agreement. You must not transfer, assign or sublicense the Content without the prior written consent of Atomik Arts. Any attempt to transfer or assign this license without prior written consent to do so shall automatically terminate this license and amount to a violation of these terms, breach of contract and the law. In cases of violation of these Terms and Conditions, copyright, trademark, patent or intellectual property of Atomik Arts Content, Atomik Arts reserves the right to seek recovery of all costs, damages, royalties, lost revenue and monies and may seek legal action to recover such losses that the Consumer has taken liability for in its violation of these Terms and Conditions and/or any relevant and applicable legislation.
19.4 Content of Atomik Arts shall bear an approved watermark that is in accordance with item 20.1 of these T&C’s (below). The only exceptions to this term are when Content is supplied: in printed media purchased from Atomik Arts; or from a commercial product photo session (see item 19.5, below); or when images or Content have been supplied under the terms of an exclusive licensing agreement for further distribution and/or publication and/or syndication after the payment of royalties.
19.5 For the purposes of photographic images captured in a commercial product photo session, whereby the Client has ordered and paid monies due for images to be used in Limited Distribution, Atomik Arts reserve the right to supply images with or without the standard watermarks & visible copyright protections, and at it’s sole discretion, may provide full resolution images for promotional purposes within a Limited Distribution. Where there is any ambiguity, all other sections and components of these T&Cs and applicable legislation are upheld.
20 EDITORIAL PHOTO CREDITS AND COPYRIGHT
20.1 Pending prior, written consent and approval of Atomik Arts, any editorial use and Consumption of the Content must bear the credit line “Atomik Arts” and/or “Adam Mazur” or the name of the accredited photographer or designer. In the case of photographic images, credit must be provided either within the visual boundaries of each image as a credit line or approved watermark, or within the caption or in the immediate visual vicinity of the image used. You agree to provide statutory copyright protection of the Content by timely registration of the work you create or the work in which Atomik Arts’ Content appears.
21 ADDITIONAL RIGHTS
21.1 If you are unsure of your usage rights under this agreement or wish to use the image in a manner not permitted by this agreement (for example: as part of an advertisement, published (tangible or non-tangible) media, point-of-sale material, packaging, press release, stock etc), please contact us via http://atomikarts/contact.
21.2 If the Consumer does not make contact with Atomik Arts and make a reasonable request for consent and approval to use the Content, it is deemed that the Consumer has chosen to violate these Terms and Conditions and any applicable and relevant legislation, such as the Copyright Act. As such, Atomik Arts reserve the right to seek recovery of all costs, damages, royalties, lost revenue and monies and may seek legal action to recover such losses that the Consumer has taken liability for, in its activities that violate these Terms and Conditions and/or any relevant and applicable legislation.
22 USER WARRANTIES
22.1 You warrant that you will take all necessary steps to prohibit and prevent unauthorised use, distribution, publishing, sale, transmission, storage or any activity that duplicates or distributes Atomik Arts’ Content.
23 ATOMIK ARTS WARRANTIES
23.1 Atomik Arts warrants that the supplied Content is shall free from material defects in material and workmanship for seven (7) days from the time of delivery.
23.2 Your sole and exclusive remedy for a breach of this warranty shall be the replacement of the Content, or exchange or a discount of the purchase price, at the sole discretion of Atomik Arts.
23.3 Atomik Arts MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY HEREBY EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Some countries/states do not permit the exclusion of implied warranties and you may have other rights, which vary from place to place.
24 DAMAGES
24.1 IN NO CASE SHALL ATOMIK ARTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES OR LOSS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, WHETHER SUCH DAMAGES ARE BASED UPON A BREACH OF EXPRESS OR IMPLIED WARRANTIES, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THIS IS TRUE EVEN IF ATOMIK ARTS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL ATOMIK ARTS ‘ LIABILITY UNDER ANY LEGAL THEORY EXCEED THE AMOUNT OF THE LICENSE FEE ACTUALLY PAID BY YOU TO ATOMIK ARTS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
24.2 The limitations or exclusions or warranties and liability contained in this agreement do not effect or prejudice the statutory rights of the Consumer. Atomik Arts shall not be liable for any general, special, direct, indirect, incidental or consequential damages arising out of the license and use of the Content.
25 LEGAL COSTS AND JURISDICTION
25.1 In the event that either a court of competent jurisdiction directs Atomik Arts to go to court, or the matter involves copyright, trademarks, patents or intellectual property, you agree to fully reimburse Atomik Arts and Adam Mazur for its reasonable legal fees and disbursements if Atomik Arts and Adam Mazur are successful in the suit.
25.2 YOUR ACCEPTANCE, USE AND CONSUMPTION OF ANY CONTENT CONSTITUTES YOUR CONSENT TO AND ACCEPTANCE OF THE FOREGOING LICENSE.
26 GOVERNING LAW AND GENERAL PROVISIONS
26.1 This Agreement will be governed by the laws in force in the Commonwealth of Australia excluding the application of its conflicts of law rules.
26.2 This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
26.3 If any part of this Agreement is found void and is not enforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
26.4 You agree that neither the Contents nor the products will be shipped, transferred or exported into any country or used in any manner prohibited by export administration legislation or any other export laws, restrictions or regulations.
27 GIFT CERTIFICATES
27.1 Gift Certificates and their Use, issue and redemption, are subject to these T&Cs.
27.2 Gift Certificates are valid for redemption towards payment of Content, goods and/or services to the monetary value indicated, or as may be the case from time to time, to the monetary value (at the time of issue) of the Content, goods and/or services that are stated on the voucher for redemption. For example, in cases where discretion is requested by the Consumer, the name of an Atomik Arts package, good and/or service may be stated instead of a monetary value. Value stated is inclusive of GST.
27.3 Gift Certificates are valid upto and including the expiry date stated on the Certificate.
27.4 Gift Certificates are not redeemable for cash.
27.5 Gift Certificates are not transferable.
27.6 Gift Certificates are non-refundable as per the Section 13.1 stated above.
27.7 Multiple Gift Certificates can be used in one transaction, however the monetary value of the Gift Certificates indicates a minimum spend. If the value of a transaction is greater than the value of the Gift Certificate (or sum of multiple Gift Certificates) then the Consumer is required to provide payment on the balance of monies due, as per Section 5 stated above.
27.8 Atomik Arts will not be liable for lost or stolen Gift Certificates.
27.9 Gift Certificates are each for single-use only and must be surrendered at the time of redemption.
28 CODE OF ETHICS
28.1 Atomik Arts endorse and operate in accordance with an industry-standard Code of Ethics as outlined by relevant industry bodies.
28.2 As a member of the Design Institute of Australia “DIA”, Atomik Arts endorse and operate in accordance with the DIA’s Code of Ethics, a copy of which is available upon request.
28.3 As a member of the Australian Institute of Professional Photography “AIPP”, Atomik Arts endorse and operate in accordance with the AIPP’s Code of Ethics, a copy of which is available upon request.
28.4 The active participation in leading industry bodies, in addition to being open to and acting upon feedback, is Atomik Arts’ promise to Clients to provide the most professional and ethical service and to ensure that customer satisfaction and a high quality outcome is achieved at all times.
MISCELLANEOUS
M1 These T&Cs shall be governed by and interpreted in accordance with the laws of Western Australia (or as applicable, federal legislation of the Commonwealth of Australia) and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that jurisdiction and any appeal courts from them.
M2 The Consumer and its directors declare that the goods and/or services and/or Content to be provided by Atomik Arts are to be used wholly or predominantly for personal purposes (or as applicable to Content manufactured using the four-colour print process, for business and/or investment purposes, or for both purposes).
M3 The Consumer acknowledges and agrees that Atomik Arts may assign all of its rights, benefits and interests under this Agreement to any other entity as nominated by Atomik Arts. Any such assignment by Atomik Arts shall not prejudice or affect the rights, claims or interests of the Consumer or Atomik Arts which have accrued up to the date of assignment.
M4 The Consumer shall not assign, transfer or novate its rights and obligations under this Agreement, without the prior written consent of Atomik Arts, in Atomik Arts’ absolute discretion.
M5 If any provision of these T&Cs is, for any reason, wholly or partly held to be illegal, void, invalid or unenforceable by a court of law or other competent authority, that provision shall be severed in the relevant jurisdiction and all other provisions of the T&Cs shall continue in full force and effect.
M6 No failure to exercise, nor any delay in exercising, any right, power or remedy by Atomik Arts operates as a waiver. A single or partial exercise by Atomik Arts of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on Atomik Arts unless in writing. Atomik Arts’ rights, powers and remedies under these T&Cs are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or by any other agreement or instrument.
M7 The Consumer consents to the use of any Personal Information of its employees, officers or agents, for the purposes set out in the Privacy Act legislation, including but not limited to the Consumer’s or its director’s credit history.
M8 Atomik Arts shall not under any circumstances be responsible to the Consumer for any failure to comply with its obligations under this Agreement or any other relevant Agreement, pursuant to any order that is accepted, which failure is caused by an act of God, acts of any Government, war or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes or lockout, inability to obtain necessary supplies and the like and other force majeure occurrences.
M9 Where an event or function is being covered by Atomik Arts, one model release form will be completed and accepted as model release for all people captured in photographs. Atomik Arts will assume that all people captured in the photographs are collectively in agreement to the Model Release and are bound, as such, to the Agreement and Atomik Arts will reserve all rights.
M10 Using of Content downloaded, stored, redistributed, published, transmitted or otherwise used from the Atomik Arts website and relevant websites, online and printed media, constitutes an agreement to be bound by these T&Cs.
M11 All Content is protected by Copyright and as applicable, by Trademarks, Patents and otherwise relevant agreements and legislation that offer protection of Atomik Arts’ intellectual property. All rights are reserved and owned by Atomik Arts and Adam Mazur or the accredited photographer or designer. The only rights granted are specifically listed below; All others are reserved. Your rights to use Atomik Arts’ Content is based on the restrictions stated in this Agreement (or in the case of any ambiguity, restrictions as stated in the applicable legislation), and are dependent upon your payment of the purchase price or royalties for the Content before use.
If you need more information on licensing, have a question about anything relating to these T&Cs or you are aware of a violation of these Terms and Conditions and applicable legislations, contact us via http://atomikarts.com/contact
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