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Term and Conditions

Welcome to the FUJIFILM Photos website (“Service”) provided to you by FUJIFILM Australia Pty Ltd ABN 80 000 064 433 of 114 Old Pittwater Road, Brookvale, New South Wales, 2100, Australia (“FUJIFILM Australia”). By registering as a member of the Service, or, accessing or using this Service, you agree to be bound by:

(a) the Terms and Conditions which are set out below;

(b)FUJIFILM Photos’ Photo Gifts Returns and Refunds Policy, a copy of which is available here and which is incorporated here by reference and

(c)FUJIFILM Australia’s Privacy Policy, a copy of which is available here and which is incorporated here by reference.

These documents constitute the entire agreement between us with respect to the use of this Service, the uploading and submission by you of Images and Content to this Service, the ordering of Products by you and the production and delivery of those Products in fulfillment of those orders.

These Terms and Conditions may be updated or changed from time to time and you should therefore check them periodically.

Please read these Terms and Conditions carefully. You must comply with these Terms and Conditions to access or use this Service. By accessing or using this Service, you accept these Terms and Conditions and agree to be legally bound and subject to them. Acceptance of the Terms and Conditions creates a binding legal agreement between you and FUJIFILM Australia that you will comply with the Terms and Conditions and use this Service only in a manner consistent with these Terms and Conditions. If you do not agree with these Terms and Conditions, do not access this Service or use any of its services.

1. Becoming a Member

You will become a member of the Service once you have entered your name, your chosen password, your email address (which must be a genuine email address) and you have received from us by email, confirmation of your membership. Once you are a member of the Service we will enable you to use all of the photo and imaging services described on this Service for members. We only permit one membership for each genuine email address. Your email address will be used for sending you all notices.

2. Your Password and Account

(a) You are responsible for maintaining the confidentiality of your password and account details. You are solely responsible for the activity which occurs on your account. You must notify FUJIFILM Australia immediately of any breach of security or any unauthorised use of your account. Although FUJIFILM Australia will not be liable for your losses caused by any unauthorised use of your account unless FUJIFILM Australia is at fault (in which case clause 10 applies). However, you may be liable for the losses of FUJIFILM Australia or others due to such unauthorised use.

(b) If you have forgotten your password you may click the link on the home page and we will email your password to you. We will keep you informed of the status of your account during your membership via your email.

3. Termination of Membership

We reserve the right to terminate the membership of any member by notice as stated in these Terms and Conditions. We also reserve the right to terminate by notice the membership of any member who breaches any of these Terms and Conditions and does not comply with our reasonable instructions to remedy the breach. We will give a member at least 2 days’ notice that we are terminating that member’s membership.

If you wish to terminate your membership at any time, you may do so by advising us by email or in writing. Please Click Here for details on how to contact us.

If your membership is terminated, you will no longer be able to access the Service and we may at our discretion remove your materials from the Service. You are responsible for obtaining any copies of your materials before termination takes effect. We are not responsible for any loss of data resulting from removal of or deletion of Content.

If we terminate membership we may at our discretion fulfil or cancel any order accepted by us prior to the date of termination. If we cancel an order we will refund any amount already paid.

4. Children Not to Order Products or Submit Images

(a) FUJIFILM Australia is particularly concerned to preserve and protect the privacy of children and their personal information.

(b) If you are under the age of 13 years you must not apply to become a member of the service. Please do not attempt to submit any photos or other information about yourself to us (such as your name, address, telephone number or email address) or order any Products from us.

(c) If you are aged from 13 to 16, you should obtain permission from your parents or guardians before sending any photos or other information about yourself to us or ordering any Products.

(d) We reserve the right to terminate your membership for breach on at least 2 days’ notice to you if you do not comply with this clause 4.

5. Your Copyright

(a) Generally under copyright laws the owner of the copyright in images or photographs is the person who created the images or took the photographs. You represent and warrant to us that you are the owner of the copyright or have the express permission of the owner of the copyright in the images or photographs which you submit to this Service. We reserve the right to terminate your membership for breach on at least 2 days’ notice to you if this representation and warranty is incorrect.

(b) We claim no ownership rights in any images or photographs submitted by you to the Service. Solely for the purpose of enabling your images or photographs to be uploaded and made available on the Service and to fulfill orders for Products made using your images and photographs, you grant to FUJIFILM Australia, its Agents and Contractors a perpetual worldwide non-exclusive transferable royalty-free copyright licence to copy, reproduce, display, modify, adapt or alter, transmit, communicate to the public and distribute any Content (including images or photographs) submitted by you to this Service in such manner as FUJIFILM Australia and its Agents and Contractors consider reasonably necessary solely for the purpose of operation of the Service or incorporation of that image or photograph into that Product and fulfilling that order.

(c) You agree that FUJIFILM Australia and its Agents and Contractors cannot control the use of your Content (including images or photographs) by third parties and will not be held liable for any use, publication or copying of your images and photographs by any such third parties. You agree that you will not take any legal action or make any claim against FUJIFILM Australia or its Agents and Contractors in respect of any such use, publication or copying by third parties.

(d) Copyright Claims: FUJIFILM Australia respects the intellectual property rights of others. Subject to clause 5(e), if we receive a written complaint alleging copyright infringement by a member of this Service, we may refer the complaint to the member concerned. It is the member’s responsibility to resolve any such complaint. If within seven (7) days of the date on which the matter was referred to the member (the “Referral Date”) FUJIFILM Australia does not receive advice in writing from the person making the complaint that the complaint has been satisfactorily resolved, FUJIFILM Australia reserves the right, in its absolute discretion, on at least two (2) days’ notice to the member, to suspend the membership of the member who allegedly infringed copyright until such time as the matter is resolved. If we have not been notified within sixty (60) days of the Referral Date that the matter has been satisfactorily resolved, we reserve the right, in our absolute discretion, to terminate for breach the membership of the member who allegedly infringed copyright after giving that member at least two (2) days’ notice of that termination.

(e)The procedures included in clause 5(d) may be adopted by FUJIFILM Australia in its sole and absolute discretion and nothing in clause 5(d) limits FUJIFILM Australia’ rights under these Terms and Conditions.

6. Intellectual Property Rights

(a) Any trade marks, trade names or logos displayed on this Service are the property of their respective owners and must not be used in any manner without the prior written consent of the owner.

(b)You should assume that all of the Content that appears on this Service or which is made available to you through this Service, including photographic images, is owned by third parties and is protected by copyright or other proprietary rights, unless expressly indicated otherwise.

(c) You must not modify, copy, reproduce, republish, frame, upload, post, transmit or distribute the Content in any way except as expressly permitted by the Service or expressly authorised in writing by the owner of that Content.

(d)You agree not to alter or remove any information, consent or other proprietary notice or legend on any of the Content, unless you are the owner of the intellectual property rights in that Content.

(e)We reserve the right to terminate your membership for breach on at least two (2) days’ notice to you if you breach this clause 6.

7. Links to Third Party Websites

This Service may contain hyperlinks and other pointers to Internet websites operated by third parties. These linked websites are not under FUJIFILM Australia’ control and we are not responsible for the operation, availability or contents of any linked website or any hyperlink contained in a linked website. If FUJIFILM Australia provides these hyperlinks, they are provided to you as a convenience only and the inclusion of any link does not imply any endorsement of the linked website by us. You access linked websites at your own risk. We have no responsibility for the accuracy, value, legality or otherwise of any materials or information contained on linked websites. You should carefully review the terms of use and privacy policies of all third party websites that you visit.

8. Altering Terms and Conditions

(a) FUJIFILM Australia reserves the right to change these Terms and Conditions at any time.

(b)Notice of changes to these Terms and Conditions and their effective date will be published on the FUJIFILM Photos website at the following URL: http://www.fujifilmphotos.com.au. We recommend you check the website for changes each time you use the Service and before placing any order. If you do not agree with a change to these Terms and Conditions you may terminate your membership at any time as set out in clause 3.

(c)The changed Terms and Conditions will apply to the Service and any order you place from the effective date of the change.

(d)FUJIFILM Australia is not responsible for any costs incurred by a Member or user of this Service as a consequence of these Terms and Conditions changing. Should FUJIFILM Australia choose to provide you with notice of changes to these Terms and Conditions, you agree to receive email notification of the changes from FUJIFILM Australia. We do not promise that we will provide you with email notice of any change.

9. Materials and Content Not Permitted on this Service

(a) Any Content submitted by you to this Service is subject to our review. While we reserve the right to review, monitor, remove or delete Content, we are under no obligation to do so.

(b) We reserve the right at our sole and absolute discretion to restrict access to this Service, refuse to display Content on this Service, remove Content from this Service or refuse to use any Content submitted by you for use in the production of a Product if we consider it necessary or appropriate, including if we receive a written complaint alleging copyright infringement or if that Content is deemed to be objectionable by us, potentially infringes any third party rights or is considered by us to be contrary to applicable laws unsuitable for use in the production of a Product. You agree to promptly report any suspicious or unauthorised use of this Service to us.

(c)Any perceived violations of laws including laws relating to child pornography, child abuse and animal abuse will be reported by us to law enforcement authorities if in our sole judgment any Content is in violation of applicable laws.

(d) Without limiting the above in any way, you are not permitted to post, upload, email, publish, transmit or otherwise make available any Content which:-

is, or we believe is, offensive, personally offensive, defamatory, abusive, obscene, upsetting, menacing, threatening, harassing or pornographic;

is illegal under any law or regulation at any place where Content is posted or uploaded from and / or viewed, and / or received, or infringes any industry code of conduct;

in the case of Products ordered through this Service, is illegal under any law or regulation at any place where those Products are to be delivered;

is Content or material that is copyrighted or used without the express permission of the owner or which infringes the intellectual property rights of any person; or

in our opinion reflects badly on the Service.

(e) You are not permitted to use the Service:-

to engage in any activities in such a manner as to expose FUJIFILM Australia and its Agents and Contractors, to liability or adversely affecting the name, reputation or business of FUJIFILM Australia and its Agents and Contractors;

to do any act that may damage or interfere with the Service, network or systems or cause the quality of the Service to be impaired; or

to commit a crime or in the course of committing a crime or for an unlawful purpose to do any act that may damage the network or systems or cause the quality of the Service to be impaired.

(f) We reserve the right to terminate your membership for breach on at least two (2) days’ notice to you if you:

submit to the Service any image or photograph that we deem to be to be objectionable or contrary to applicable laws; or

use the Service in a manner not permitted by this clause 9.

10. Our Liability

(a) You may have rights and remedies under the Australian Consumer Law and similar laws in relation to the supply of the Service and the Products. This clause 10 is subject to and does not exclude or limit any of those rights or remedies.

(b) Clause 10 of these Terms and Conditions does not exclude any commitments given by us in our Photo Gifts Returns and Refunds Policy.

(c) Your access of or use of the Service is at your own risk. You should take appropriate steps to back-up materials submitted by you to the Service and to protect your computer against any damage that could result from your access to or use of the Service. The Service, the uploading of Content to the Service, the transfer of any Content to or from third party websites, the transfer of any Content for use in the production of Products and the ordering of Products through the use of the Service may not be error free or uninterrupted. We do not give any commitment in relation to the security, reliability, timeliness and performance of the Service and any of those other functions. To the extent permitted by law FUJIFILM Australia and its Agents and Contractors are not responsible for interruption of the Service, linkage to any third party sites, damage to your computer, damage to other property or loss of Content or other data resulting from your access to or use of this Service.

(d)To the extent permitted by law, if due to negligence or other fault on our part:

loss, damage or mishandling of your digital image or other Content or the Product ordered by you occurs; or

unauthorised access is gained or misuse is made of an image or other Content by any third party,

if our Photo Gifts Returns and Refunds Policy applies, our liability will be limited, at our option, to providing you with a remedy as set out in that Policy. If our Photo Gifts Returns and Refunds Policy does not apply, to the extent permitted by law our liability will be limited at our option to:

uploading that image or other Content to the Service again;

using that image or other Content to produce the Product again for you (where the loss, damage or mishandling relates to the production or delivery of Products ordered by you); or

refunding any money paid by you to us for producing the Product through the use of that image or other Content.

(e) Except as expressly provided in these Terms and Conditions and, to the fullest extent allowed by the law, FUJIFILM Australia and its Agents and Contractors will not be liable for loss or damage of any kind arising out of your access to or use of this Service, the uploading of images or other Content by you or the ordering of Products by you.

11. Your Liability to Us

(a) You agree to pay to us the amount of any and all claims, damages, obligations, losses, liabilities, costs or expenses (including but not limited to solicitors costs) we incur arising from:

your breach of any term of these Terms and Conditions;

your breach of any third party right, including without limitation any copyright, property, or privacy right or privacy law; or

any claim that any of your images or any Content submitted to the Service caused damage to a third party.

Your obligation to pay us under this clause will survive these Terms and Conditions, termination of your membership, your use of the Service and the ordering, production and delivery to you of any Products.

12. Orders for Products

(a) Once an order for Products is placed by you through this Service that order becomes binding.

(b) Due to the personalised nature of the Products ordered through this Service, once made, any order for Products placed by you through this Service normally cannot be cancelled or adjusted. However, if you believe you have placed an order in error, please email or contact us in the manner detailed in clause 13 below and we will assess whether in the circumstances we are able to comply with your request. We cannot promise that we will be able to do so.

(c) We recommend you carefully preview the items to be ordered by you and the choices made by you for their production before ordering, and ensure you are satisfied before adding them to your Shopping Cart. A tick box will prompt you to confirm this at the time you place your items into your shopping cart.

13. Delivery

We will ensure that within 5 Business Days of the receipt by us of your order for Products, that order is provided by us to Australia Post or another third party carrier to deliver to you. Ordinarily, delivery of an order to you by Australia Post or another third party carrier may be expected within 10 Business Days after the receipt by us of your order. However we cannot accept responsibility for delivery failures or delays by Australia Post or by other third party carriers and make no promise to you that orders for Products will be delivered to you within that period. Please refer to clause 10 (Our Liability to You).

14. Reproduction of Colours, Uploading of Images and Your Responsibilities

(a) Reasonable efforts are made to display the colours of Products (including colours to be reproduced from images uploaded by you) that appear online on this Service as accurately as possible, however the colours displayed to you on this Service will depend on your monitor and the settings of your monitor.

(b) Before confirming an order for a Product, it is your responsibility to edit any images uploaded by you for use in that Product including cropping the image to your requirements and ensuring the image meets the degree of resolution required by you or the minimum resolution recommended for that Product.

(c) We will not be liable to compensate you, give you a refund or to reproduce any Products:

simply because the actual colours of Products provided to you or their tones differ to the colours of those Products as displayed to you on this Service (unless this is due to fault on the part of FUJIFILM Australia or its Agents and Contractors and suppliers in connection with the production of those Products); or

poor quality prints or images incorporated in Products as a result of improper cropping by you or the failure of the image uploaded by you to meet the minimum resolution recommended for that Product.

15. Order Enquiries

If you have any query about the progress of your order for any Products, please contact us and quote your order number (you will receive this number after a successful transaction at this Service). Click Here for details on how to contact us.

16. Damaged or Faulty Products and Photo Gifts Returns and Refunds Policy

(a) If any Product ordered by you arrives damaged, is not of acceptable quality or the problem has occurred in the production of your order you may have:

rights under our Photo Gifts Returns and Refunds Policy; and

additional legal rights and remedies in Australia under the Australian Consumer Law and other laws. Nothing contained in our Photo Gifts Returns and Refunds Policy is intended to exclude or limit those rights and remedies.

(b) Our Photo Gifts Returns and Refunds Policy contains details of how to contact us to address a possible claim and to sort out arrangements for the possible return of the Product that is the subject of a claim. Please view our Photo Gifts Returns and Refunds Policy on this Service by Clicking Here.

(c) If your order arrived damaged, please email our customer service team at Contact Us and quote your order number (you will receive this number after a successful transaction made through this Service). We will let you know whether you need to return the item to FUJIFILM Australia.

We will honour and comply with our duties and obligations set out in our Photo Gifts Returns and Refunds Policy.

17. Privacy

(a) The privacy of your personal information is important to us. Please view FUJIFILM Australia’ Privacy Policy – FUJIFILM Australia and Your Right to Privacy, on this Service. Should you have any questions concerning privacy, please see FUJIFILM Australia’s Privacy Policy or contact the FUJIFILM Australia Privacy Officer at (02) 9466 2600 or email at privacy@fujifilm.com.au.

(b) FUJIFILM Australia and its Agents and Contractors may collect your personal information, including your name, address, billing and delivery information, email address, and credit card details.

(c) FUJIFILM Australia, its Agents and Contractors, will use this information to provide the Products or other service requested by you, produce those Products or provide those services, fulfil and follow up on your orders for Products or services, respond to queries regarding orders and Products and services and create and maintain your account. FUJIFILM Australia, its Agents and Contractors may use this information to provide you with information on your account and the Products or services you purchased from this Service. FUJIFILM Australia may also send you promotional information and/or special offers about products and services that FUJIFILM Australia thinks may be of interest to you, unless you indicate that you do not wish to receive such promotional information.

18. Photo Storage

(a) The Service’s photo storage facility is known as My Photos.

(b) When you become a member of this Service you receive free storage of images for your photo albums for 12 months’ from the date of activation. Thereafter, a member will maintain free storage for their albums provided that a verified print order is made at least once every 12 months either by the member themselves or by someone with whom the member has shared their albums. From the date each verified order is received, the membership will be credited with free storage for the following 12 months i.e., the 12 months free storage period re-starts with each print order. The maximum period of free storage at any point in time is 12 months.

(c)At the end of the free storage period FUJIFILM Australia may by giving you not less than two (2) days’ notice remove and/or delete your photo albums.

(d) FUJIFILM Australia is not responsible for any loss of data or images resulting from removal and/or deletion of materials.

19. Governing Law

These Terms and Conditions shall be governed by the laws of the State of New South Wales, Australia and the parties submit to the jurisdiction of the Courts of New South Wales, Australia.

20. Severability

If any court of competent jurisdiction finds any provision or part thereof of these Terms and Conditions to be illegal, invalid or unenforceable that provision or part thereof shall be severed from these Terms and Conditions and the remaining terms and provisions of these Terms and Conditions shall remain in force and constitute the agreement between you and FUJIFILM Australia.

21. Waiver

The failure by us to enforce any right or provision of these Terms and Conditions will not restrict us from enforcing it now or in the future.

22. Definitions

In these Terms and Conditions the following expressions shall have the following meanings unless otherwise stated:-

“Agents and Contractors” means any agents, contractors and sub-contractors of FUJIFILM Australia who are engaged in the creation, provision or maintenance of the Service or in the production of Products and the fulfilment of orders for Products made through the Service;

“Business Day” means any day other than a Saturday, Sunday or public holiday in the State of New South Wales, Australia;

“Content” means any images, photographs or other materials or content submitted or uploaded to this Service;

“Product” means any printed photo or Photo Gift or other product that is offered for sale and may be ordered through this Service; and

“we”, “our” or “us” means FUJIFILM Australia Pty Ltd 80 000 064 433.