DAY Investments Limited ("the Provider") provides stock-image licensing services through nzphotos.com and grants the Customer (as defined below) a licence to use the Photographic Works in accordance with these Standard and Extended Licence Terms and Conditions.
1Application and acceptance
(a) The Parties acknowledge and agree that this Licence applies to all Photographic Works licensed by the Provider to the Customer.
(b) Acceptance of this Licence shall occur:
(1) Upon payment of the Licence Fee;
(2) By the Customer confirming acceptance of this Licence in writing or through the Site; and/or
(3) Upon the Customer using (including copying, downloading, or publicising in any form, including on the internet) the Photographic Works or any part of them,
whichever occurs first.
(c) The version of this Licence in force at the time the Licence Fee is paid governs that licence. A later version does not apply to a licence already granted.
(d) Each licence granted is evidenced by a Licence Certificate, which identifies the Photographic Work, the Licence Type, the Customer and the date of the licence. The Licence Certificate forms part of the agreement between the Parties; clause 22 governs the order of precedence between the documents.
2Grant of licence
(a) In consideration for the Licence Fee and subject to this Licence, the Provider grants the Customer a non-transferable and non-exclusive right, authority and licence to use, reproduce and publish the Photographic Works worldwide, for the scope set out in the Licence Type acquired.
(b) Standard Licence. The Customer may use the Photographic Works:
(1) for personal use; and
(2) for commercial use, including websites, online advertising, brochures, presentations, packaging, editorial articles and social media,
provided that the Photographic Works are not used for or featured on any product offered for resale in which the Photographic Work is a principal source of the value of that product. Products of that kind include textiles, drinkware, accessories and other merchandise, and require an Extended Licence. Products listed in subclause (d) are reserved to the Provider and are not available under either Licence Type.
(c) Extended Licence. The Extended Licence confers all rights of the Standard Licence and, in addition, permits use of the Photographic Works on products offered for resale in which the Photographic Work is a principal source of the value of that product, including print-on-demand items, apparel, drinkware, accessories, home textiles and comparable merchandise. The Extended Licence is subject to subclause (d) below, and permits the production of up to 10,000 units in aggregate across all such products for each Photographic Work.
(d) Rights reserved to the Provider. The Provider produces and sells wall art from the Photographic Works itself. Accordingly, and regardless of the Licence Type acquired, no licence granted under this agreement permits the Customer to produce, offer or sell:
(1) posters, art prints, canvas prints, framed prints, or other prints intended for display;
(2) wall murals, wallpaper or comparable wall coverings;
(3) calendars, postcards, greeting cards or comparable printed cards;
(4) photobooks, portfolios or comparable publications consisting principally of the Provider's Photographic Works.
A licence for any of these uses may be granted at the Provider's sole discretion, subject to a further Licence Fee agreed in writing between the Parties.
(e) Enterprise Licence. Production beyond the limit in subclause (c), and any use not covered by a Standard or Extended Licence, requires an Enterprise Licence. An Enterprise Licence is negotiated individually, is not available through the Site, and is granted under a separate written agreement between the Parties. This Licence does not apply to an Enterprise Licence except to the extent that the separate agreement says so.
(f) Where the Customer holds a Standard Licence and wishes to make a use permitted only under an Extended Licence, the Customer may acquire an Extended Licence for that Photographic Work at any time. Any such acquisition is subject to payment of the additional Licence Fee then applicable.
(g) The licence granted under this clause:
(1) begins on full payment of the Licence Fee; and
(2) continues perpetually unless terminated pursuant to clause 16 or unless the licence expires following an agreed term or period.
(h) The Customer is entitled to:
(1) use only a portion of the Photographic Works; and/or
(2) crop, retouch, manipulate, distort or make other alterations (including overprinting by text or other photographic works) to the Photographic Works.
(i) The Customer shall not intentionally remove or alter any visible copyright notice, watermark or other copyright-management information applied to the Photographic Works, and shall not defeat, or attempt to defeat, any restriction the Provider has placed on access to or use of the Photographic Works. The Customer is not responsible for embedded metadata removed or altered automatically by a publishing platform, an editing application or another ordinary technical process outside the Customer's reasonable control.
(j) Any breach of this Licence by the Customer which causes demonstrable damage to the professional reputation of the Provider entitles the Provider to recover compensation for that damage from the Customer, to the extent permitted by law and in addition to any other remedies available to the Provider.
(k) Notwithstanding any other provision in this Licence, the Provider shall be entitled to:
(1) use the Photographic Works in any manner, at any time and in any part of the world for advertising or otherwise promoting the Provider's services and business, including on its websites, publications and through the use of social media, and for any other purpose within the Provider's business activities; and
(2) licence the Photographic Works to third parties, on terms agreed between the Provider and those third parties.
3Prohibited uses
The following restrictions apply to every Licence Type unless the Provider agrees otherwise in writing.
(a) Artificial intelligence and machine learning. The Photographic Works must not, in whole or in part, be used to train, develop, fine-tune, validate or benchmark any artificial intelligence or machine learning model or system, be included in any dataset compiled for such purposes, or be used to generate imagery which is offered or used independently of the Customer's own material.
This subclause does not prevent the Customer from using ordinary editing tools, including tools which rely on artificial intelligence, to retouch, denoise, upscale, extend or otherwise adapt the Photographic Works for the Customer's own permitted use, and does not prevent publication on social media or comparable platforms.
(b) Tokenisation. The Photographic Works must not be minted, issued or offered as a non-fungible token or any comparable blockchain-based asset, nor used to assert ownership of the Photographic Works.
(c) Sensitive use. The Photographic Works must not be used in connection with adult or sexually explicit material, tobacco, firearms, gambling, or political campaigning, nor in any manner which depicts or implies that an identifiable person, property or organisation endorses a product, service or opinion, or suffers from a physical or mental health condition, without the Provider's prior written consent.
(d) Unlawful or damaging use. The Photographic Works must not be used in any unlawful, defamatory, obscene, fraudulent or misleading manner, nor in any way likely to bring the Provider or the persons or places depicted into disrepute.
(e) Redistribution as imagery. The Photographic Works must not be sublicensed, sold, distributed or otherwise made available as imagery in their own right, whether as stock imagery, as part of a template, clip-art or design-asset collection, through a wallpaper, screensaver or image-download service, or as part of a dataset. This subclause does not restrict the sale of products permitted under clause 2(c).
(f) Third parties. The Customer may make the Photographic Works available to its employees, agents, printers, contractors, hosting providers and social-media or comparable platforms, solely to the extent reasonably necessary to create, host, publish or distribute material permitted under this Licence. The Customer shall ensure that its employees, agents, printers and contractors comply with this Licence, and shall remain responsible for their acts and omissions. Except as part of a finished use permitted under this Licence, the Customer must not provide any third party with the original file, or with any standalone or readily extractable copy of a Photographic Work, for that third party's independent use.
4Releases and editorial-only Photographic Works
(a) The Provider does not warrant that a model release, property release or other third-party consent has been obtained in respect of any Photographic Work, unless the Provider states otherwise in writing.
(b) Where a Photographic Work is identified on the Site or in the Licence Certificate as "Editorial use only", the Customer may use it solely for news reporting, commentary, criticism, education or comparable editorial purposes. Any advertising, promotional, merchandising, endorsement or other non-editorial use of such a Photographic Work is outside the scope of this Licence. Editorial use by a commercial publisher, broadcaster or news service is permitted.
(c) Where a Photographic Work depicts an identifiable person, private property, a work of art, a trade mark, a logo or other protected subject matter, the Customer is responsible for satisfying itself that its intended use is lawful and for obtaining any further consent, release or permission required for that use.
(d) On request, the Provider will inform the Customer whether a release is held for a particular Photographic Work.
5Licence Fee and payment
(a) In consideration for the rights and benefits conferred on the Customer under this Licence, the Customer shall pay the Provider, in full and without set-off or deduction, the Licence Fee using one of the methods or services made available on the Site from time to time (unless otherwise agreed in writing). These may include payment by credit or debit card, by PayPal, or by direct credit into a bank account nominated by the Provider.
(b) Unless otherwise agreed in writing, the Customer's rights to use the Photographic Works are subject to payment of the full Licence Fee.
(c) All Licence Fees are stated in New Zealand Dollars and are exclusive of Goods and Services Tax unless stated otherwise. GST will be charged, zero-rated or otherwise treated in accordance with the Goods and Services Tax Act 1985. The treatment applied is shown on the invoice issued for each purchase.
(d) The Customer is responsible for any tax, duty or levy arising in the Customer's own jurisdiction, including any obligation to account for value added tax under a reverse charge.
6Format, delivery and refunds
(a) All Photographic Works supplied by the Provider to the Customer were developed for the Provider's purposes and without consideration of any purpose for which the Customer might use them, and are made available on an "as is" basis for the Customer's use only. The Provider makes no representations or warranties as to the sufficiency or appropriateness of the Photographic Works for any purpose for which the Customer may use them.
(b) The Photographic Works are supplied electronically through the Site in the formats and resolutions offered there from time to time. Unless expressly agreed between the Parties, the Provider is not obliged to provide copies in any other electronic, physical or editable format.
(c) Because the Photographic Works are delivered as digital files, the Provider is unable to offer refunds once a Photographic Work has been supplied to the Customer or otherwise downloaded from the Site. Nothing in this subclause limits any right or remedy the Customer may have which cannot lawfully be excluded, including under clause 15.
7Copyright and moral rights
(a) All rights and title in the Photographic Works are owned by the Provider or its licensors. This Licence does not convey title or grant any rights of ownership in the Photographic Works to the Customer.
(b) The Provider retains all copyright and other rights in the original Photographic Works. Where the Customer creates independently original material in connection with a Photographic Work, ownership of that independent material is not transferred to the Provider. The Customer acquires no ownership in the underlying Photographic Work, and may use any composite, adapted or derivative work only within the scope of this Licence.
(a) Unless otherwise agreed in writing by the Parties, the Customer shall not:
(1) use or publish the Photographic Works, except as expressly permitted by this Licence;
(2) sell, assign, sublicense or otherwise transfer or deal with the Photographic Works other than in accordance with this Licence;
(3) cause or permit anything that may damage or endanger the Photographic Works.
(b) The Customer shall supervise and control the use of the Photographic Works in accordance with the terms of this Licence.
9Storage and backups
The Customer acknowledges that the Customer is responsible for the storage and backup of the Photographic Works supplied under this Licence. While the Provider will follow its usual backup procedures, the Provider shall not be liable under any circumstances if it is unable to produce backups or future reproductions of the Photographic Works upon the request of the Customer. Where backups are available, these may be made available to the Customer for a fee.
10Acknowledgement of Customer
The Customer acknowledges that prior to the Provider granting any licence:
(a) the Customer has had a reasonable opportunity to inspect, or has inspected, the Photographic Works;
(b) the Customer is satisfied as to the nature and quality of the Photographic Works and as to their intended purposes and uses; and
(c) the Customer has not in any way relied on any representation (actual or implied) by the Provider as to the suitability or fitness of the Photographic Works for the Customer's intended or potential purposes and uses.
11Warranties
(a) The Provider warrants and represents to the Customer that:
(1) the Provider is the exclusive owner, or duly authorised licensee, of the Photographic Works and has the right and authority to license them to the Customer on the terms of this Licence; and
(2) to the best of its knowledge, the Provider's grant of the rights expressly stated in this Licence does not infringe the copyright of any third party. This warranty does not extend to trade marks, logos, works of art, private property or the rights of identifiable persons appearing within a Photographic Work, which are dealt with in clause 4(c).
(b) Except as provided in subclause (a), the Provider disclaims to the fullest extent permitted by law all other warranties (express or implied), including without limitation any implied warranties of merchantability, characteristics, performance, content, satisfactory quality or fitness for a particular purpose with regard to the Photographic Works.
12Exclusion of liability
Except as specifically stated in this Licence, and subject always to clause 15, the Provider shall in no circumstance be liable (whether at common law (including negligence), equity, statute or otherwise) for any damage, costs, expenses, claims, liability, loss or injury caused by the Photographic Works supplied or arising from or in relation to this Licence, or from any act, default or negligence on the Provider's part, or that of its employees, agents or contractors.
13Limitation of liability
In the event that any exclusion, limitation or provision contained in this Licence is invalid for any reason, and/or if the Provider becomes liable for any loss, damage, claim or expense of any kind, such liability is limited to the Licence Fee paid by the Customer for the Photographic Work concerned. This subclause does not apply to liability which cannot lawfully be limited.
14Indemnity
The Customer shall indemnify and hold harmless the Provider in respect of any costs, losses, liabilities, claims, demands or damages incurred or suffered by the Provider (including legal costs on a solicitor- client basis) to the extent caused by the Customer's unauthorised use of the Photographic Works, or by any default or breach of the Customer's obligations under this Licence. This indemnity does not extend to loss caused by the Provider's own act, default or negligence.
15Consumer and business protections
(a) Nothing in this Licence excludes, restricts or modifies any guarantee, condition, warranty, right or remedy which cannot lawfully be excluded, restricted or modified.
(b) Where the Photographic Works are supplied and acquired in trade, both Parties are in trade, and it is fair and reasonable that the Parties be bound by this subclause, the Parties agree to the maximum extent permitted by section 43 of the Consumer Guarantees Act 1993 that the Consumer Guarantees Act 1993 does not apply, and contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986, in relation to this Licence.
(c) Where the Customer acquires the Photographic Works for personal, household or domestic use, the Consumer Guarantees Act 1993 applies and subclause (b) has no effect.
16Termination
(a) This Licence terminates immediately and automatically, and all rights in the Photographic Works conferred upon the Customer are revoked, if the Customer:
(1) makes the Photographic Works available to any third party otherwise than as permitted by clause 3(f);
(2) redistributes the Photographic Works as imagery contrary to clause 3(e);
(3) acts contrary to clause 3(a) (artificial intelligence and machine learning) or clause 3(b) (tokenisation);
(4) uses the Photographic Works unlawfully, or contrary to clause 3(c) or 3(d);
(5) fails to pay the Licence Fee in full; or
(6) knowingly claims ownership of, registers rights in, or grants rights over the Photographic Works in a manner inconsistent with the Provider's rights. Raising a genuine dispute in good faith, or exercising a right which cannot lawfully be excluded, is not a breach of this subclause.
(b) In the case of any other breach of this Licence, the Provider shall notify the Customer of the breach in writing, and this Licence terminates only if the Customer fails to remedy the breach within 10 working days of that notice.
(c) This Licence also terminates immediately if:
(1) the Customer commits an act of bankruptcy or makes any assignment or composition with its creditors;
(2) liquidation or bankruptcy proceedings are commenced in respect of the Customer;
(3) the Customer has a receiver, manager or statutory manager appointed.
(d) Where a third-party licence on which the Customer's licence expressly depends, as identified in the Licence Certificate, is terminated or expires and the Provider is legally required to terminate this Licence, the Provider shall notify the Customer in writing. Unless the termination results from the Customer's breach, the Provider shall at its option refund the Licence Fee or provide a replacement licence of comparable value.
17Consequences of termination
(a) Termination of this Licence shall be without prejudice to the rights and remedies of the Provider in respect of any prior breach by the Customer.
(b) The Customer shall:
(1) cease all further use, reproduction, manufacture, publication and distribution of the Photographic Works, and within 7 days of termination delete all source and production files containing the Photographic Works which are within its reasonable control;
(2) certify in writing that it has done so; and
(3) on the Provider's reasonable request, recall finished material already distributed, but only where the use was unlawful, infringing, contrary to clause 3(c), or materially damaging to the Provider.
Subclause (b)(1) does not extend to copies retained solely in inaccessible backup systems, or retained as required by law, provided those copies are not restored, published or otherwise used. Finished material lawfully distributed before termination need not otherwise be recalled.
18Infringement
The Customer shall inform the Provider in writing as soon as practicable if the Customer becomes aware of any unauthorised use, or proposed unauthorised use, of the Photographic Works by any Person.
19Confidential information
Where a Party discloses information to the other and identifies it in writing as confidential at the time of disclosure, the receiving Party shall keep that information confidential, shall use it only for the purposes of this Licence, and shall return or destroy it on request. This clause does not apply to information which is or becomes public knowledge other than through a breach of this Licence, which the receiving Party already held, or which is required to be disclosed by law.
20Privacy and personal information
(a) The Provider collects and processes personal information about the Customer in order to perform this Licence, to issue invoices and Licence Certificates, and to meet its record-keeping obligations. The Provider handles that information in accordance with the Privacy Act 2020 and its Privacy Policy, published on the Site.
(b) Where other data protection law applies to the Provider's processing, including the General Data Protection Regulation, the Provider processes personal information in accordance with that law. Details of the lawful bases, retention periods, transfers, individual rights and contact point are set out in the Privacy Policy.
(c) Where a Photographic Work depicts an identifiable person and the Customer's use involves processing that person's personal information, the Customer is responsible for complying with the privacy law applicable to that use.
21Force majeure
The Provider shall not be liable in any way whatsoever for any delay in, or breach of, this Licence caused directly or indirectly by war, acts of God, strikes, lockouts, labour disputes, riots, government action or interference, fire, earthquake, volcanic eruption, pandemic, accident, failure or interruption of transportation, telecommunications or internet services, or any other cause beyond the Provider's reasonable control.
22Agreement and order of precedence
(a) The agreement between the Parties consists of this Licence, the Licence Certificate, the invoice or order confirmation issued for the purchase, and any specific terms agreed in writing between the Parties.
(b) In the event of inconsistency, specific terms agreed in writing between the Parties prevail, followed by the Licence Certificate in respect of the particulars it records (the Photographic Work, the Customer, the Licence Type, the date of the licence, the version of this Licence, the credit line and any specific restriction or permission), and then this Licence.
(c) This agreement supersedes all prior representations, agreements, licences, statements and understandings, whether verbal or in writing, on its subject matter.
23Assignment
(a) The Customer may not assign any of its rights, duties or obligations under this Licence (including any licence granted to it by the Provider) without the prior written consent of the Provider, which shall be granted at the Provider's sole discretion.
(b) The Provider may transfer this Licence, together with its rights and obligations under it, to a successor in connection with a sale, merger or reorganisation of its business, provided the successor assumes those obligations. The Provider shall notify the Customer of any such transfer in writing.
24Survival
The covenants, conditions and provisions of this Licence capable of having effect after its termination shall remain in full force and effect following termination.
25Governing law, jurisdiction and disputes
(a) This Licence shall be construed in accordance with and governed by the laws of New Zealand, and the Customer submits to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Photographic Works and this Licence.
(b) Before commencing proceedings, each Party shall notify the other in writing of the matter in dispute and the Parties shall attempt in good faith to resolve it by discussion within 20 working days. This subclause does not prevent either Party from seeking urgent interim relief.
26Variation, waiver and new versions
(a) The provisions of this Licence shall not be varied except by agreement between the Parties in writing.
(b) No right, duty or obligation in this Licence shall be deemed to be waived except by agreement between the Parties in writing.
(c) The Provider may publish revised versions of these Standard and Extended Licence Terms and Conditions. A revised version applies only to licences granted on or after the date it takes effect, and does not affect any licence already granted. Each published version is identified by a version number and a date, and remains available from the Provider on request.
27Severability
If any provision or part of any provision of this Licence is for any reason declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, it shall not affect the legality, validity or enforceability of the other provisions or part provisions, and shall be severed from this Licence so that the remaining provisions remain in full force and effect.
28Notices
Notices pursuant to this Licence may be delivered in person, by email or by post to:
(a) the Customer, at the Customer's address as notified to the Provider, or the Customer's usual email or postal address; or
(b) the Provider, at 16/160 Kepa Road, Ōrākei, Auckland 1071, New Zealand, or office@nzphotos.com.
29Definitions
In this Licence, the following meanings apply:
(a) "Artificial intelligence or machine learning model or system" means any software, model, algorithm or service which derives parameters, representations or outputs from input data, including generative image and text models.
(b) "Copyright" means, by virtue of the Copyright Act 1994 (or the equivalent law of the applicable jurisdiction), the copyright subsisting in original works that are part of, or incidental to, the Photographic Works.
(c) "Customer" means the natural or legal person named as the licensee in the Licence Certificate. Employees, agents and contractors may handle the Photographic Works on that person's behalf in accordance with clause 3(f), but acquire no licence of their own. Related or group companies are not licensed unless separately named, and any person wishing to use a Photographic Work independently of the Customer requires their own licence.
(d) "Editorial use only" means use for news reporting, commentary, criticism, education or comparable editorial purposes, including such use by a commercial publisher, broadcaster or news service, and excludes advertising, promotional, merchandising, endorsement and other non-editorial use.
(e) "Enterprise Licence" means a licence granted under a separate written agreement as described in clause 2(e).
(f) "Extended Licence" means the Licence Type described in clause 2(c).
(g) "Intellectual Property" or "Intellectual Property Rights" mean patentable material, patents, copyright, trade marks (including names, labels, get-up, logos, patterns or other identifying marks), designs, rights in software and designs, and any other right granted by operation of law which confers protection on any written or artistic work created by intellectual effort, and all associated intangible assets created as a by-product.
(h) "Licence" means these Standard and Extended Licence Terms and Conditions.
(i) "Licence Certificate" means the document issued by the Provider for each licensed Photographic Work, recording the Photographic Work, the Licence Type, the Customer, the date of the licence, the version of this Licence under which it was granted, the applicable credit line, and any specific restriction or permission.
(j) "Licence Fee" means the amount payable by the Customer, as agreed between the Parties through the Site or otherwise in writing, in consideration for the licence of the Photographic Works.
(k) "Licence Type" means the Standard Licence or the Extended Licence, as recorded on the invoice and the Licence Certificate. An Enterprise Licence is governed by its separate written agreement and is not a Licence Type under this Licence unless that agreement expressly provides otherwise.
(l) "NZ Photos" and "the Provider" mean DAY Investments Limited, a duly incorporated company having its registered office in Auckland, New Zealand.
(m) "Parties" means the Customer and the Provider, and "Party" means one of them.
(n) "Person" includes any natural person, company, corporation, firm, partnership, joint venture, society, organisation or other group or association of persons (whether incorporated or not), trust, state or agency of state, statutory or regulatory body, local authority, government or governmental or semi-governmental body or agency.
(o) "Photographic Works" means any or all of the photographs and other artistic works (in any format or medium) supplied by the Provider to the Customer under this Licence.
(p) "Site" means the stock-image licensing website operated by the Provider at https://nzphotos.com.
(q) "Standard Licence" means the Licence Type described in clause 2(b).
30Rules of interpretation
In this Licence, unless the context otherwise requires:
(a) references to any Party shall mean and include a reference to that Party, its successors, executors or personal representatives (as the case may be), and transferees;
(b) where more Parties than one are covenanting Parties, the covenants expressed or implied in this Licence bind the covenanting Parties jointly and each of them severally;
(c) any reference to legislation, statute, regulation, ruling, code, rules or ordinance includes a reference to any modification of, substitute for, consolidation or re-enactment of it, and any regulation, order in council or other instrument from time to time made or issued under it;
(d) headings are for convenience only and do not affect the interpretation of this Licence except for use as cross-references; and
(e) any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other Person to do that thing.
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