STANDARD MEMBER TERMS AND CONDITIONS (NZ)
current as at 7 Feb 2015
This website (the "Site") is owned and operated by Momento Pro Ltd, Company No. 4662119, NZBN 9429030051874 ("Momento", "we," "us" and "our"). Momento provides its online Photo Product printing service enabling you to upload, preview and order Photo Products (the "Services") subject to the following terms and conditions.
Momento reserves the right to amend these terms and conditions from time to time without notice to you (though if you have opted in to receive newsletters from us we will alert you to changes). Such amendments will be effective immediately on posting of the modified terms and conditions on the Site. You should therefore carefully read through these terms and conditions on each occasion that you access and use the Site.
By completing the membership registration process, you expressly agree to be bound by these terms and conditions, the Momento Software Licence Agreement and the Momento Website User Terms and Conditions (collectively the "Terms").
IF YOU DO NOT WISH TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THE SITE AND/OR THE SERVICES AND YOU SHOULD IMMEDIATELY CEASE ACCESS TO THE SITE.
Images and photographs submitted by you
- MEMBERSHIP INFORMATION
- When registering as a Standard Member of Momento, you must provide Momento with accurate and complete details of your name, selected password and email address.
- It is your responsibility to inform Momento of any changes to your membership information.
- USERNAME AND PASSWORD
- You must ensure that your username and password remain confidential at all times. You are entirely responsible for all activities that occur under your username and password, including unauthorised use of your user name and password. You must notify Momento immediately if you become aware of any unauthorised use of your username and password.
- YOUR OBLIGATIONS
- You must deliver the file for your Photo Product (the "File") ready for printing to Momento by:
- uploading the File to the Site using the upload facility provided after logging in at the Site; or
- mailing the File on CD-R or DVD-R to Momento at the address noted on the website at the Site.
- You warrant that the File you submit to Momento does not contain any virus or other destructive program of any kind.
- You warrant that you have thoroughly proofed all images and text in the File and confirm that the File is error-free and ready for printing.
- You agree that you have read the Care of Your Photobook instructions available on the Site.
- OBLIGATIONS OF MOMENTO
- Subject to the Terms, on receipt of your File, we will:
- allow you to view your Photo Product on the Site ("Preview");
- allow you to order printed copies of your Photo Product via the Site; and
- allow you to invite guests to view your Photo Product at the Site ("Selected Guests").
- If you have granted us the right to make copies of your Photo Product available to third parties under our Seller Terms and Conditions, we will allow you to send an email to your Selected Guest which will include a link to a private web page where your Selected Guest can, subject to clause 10.1(c), preview and purchase your Photo Product.
- We agree to print the Photo Product(s) you order as high quality digital prints using a digital printing process not a photographic printing process.
- Your File will remain on the Site for at least 90 days. Subject to clause 12.3, your File will remain available on the Site indefinitely if, within that 90 day period, you order physical copies of your File from us. However, if you do not order any physical copies of your File from us, we may permanently delete that File at any time following that 90 day period.
- PURCHASE OF PHOTO PRODUCTS AND PRICES
- You must pay Momento for the Photo Product(s) you order and any delivery costs in accordance with the Momento Retail price list.
- If requested, we can provide additional design or cover art work for your Photo Product(s) for a separate charge.
- Momento will provide you with an electronic copy of its invoice at the time you order your Photo Product(s). You should print out a copy of the invoice for your records.
- Except as otherwise agreed in writing or provided in the Terms, you must pay the amount of the invoice to Momento at the time you order your Photo Product(s) from Momento.
- Momento's price list does not include any insurance of the Photo Product(s) from the time they are dispatched from our premises. You shall be liable to pay all delivery charges as invoiced.
- Except as required by law, we will not refund any money paid by you to Momento if you cancel an order after you have submitted and paid for the order.
- PASSING OF RISK AND TITLE IN PHOTO PRODUCT(S)
- All risk in physical copies of any Photo Product(s) you order will pass to you immediately upon dispatch from our premises.
- We will retain title to the physical Photo Product(s) you order until we have received full payment from you for the Photo Product(s).
- DELIVERY AND INSPECTION
- We will use our best endeavours to arrange for the delivery of the Photo Product(s) specified in your order within a reasonable time of receipt of such order, given stock levels, transport availability and other relevant factors but in no event will we be liable to you for delay of any kind whatsoever in complying with or meeting such order, irrespective of whether such delay is incurred or suffered as a result of any cause or circumstance whatsoever.
- We shall not be liable to you for any inability to fulfill all or part of any order placed by you from time to time. We will advise you as soon as reasonably possible as to orders which cannot be fulfilled.
- No claims for damaged or defective Photo Product(s) may be made against us unless written notice of such claim is received by us within 7 days after the delivery of the Photo Product(s) to you.
- If you fail to advise us of any damage to the Photo Product(s) within 7 days after delivery, you shall be taken to have accepted the Photo Product(s) and the Photo Product(s) will be deemed to conform with the Terms.
- LIMITED WARRANTY
- TO THE EXTENT PERMITTED BY LAW, ALL CONDITIONS, WARRANTIES, STATEMENTS, ASSURANCES AND RESPRESENTATIONS IN RELATION TO MOMENTO'S SERVICES AND PHOTO PRODUCTS ARE EXPRESSLY EXCLUDED.
- PLEASE BE SURE TO PREVIEW YOUR PHOTO PRODUCT(S) CAREFULLY BEFORE PLACING YOUR ORDER. IMAGES AND TEXT WILL BE PRINTED AS THEY APPEAR IN THE PREVIEW.
- IN THE EVENT OF LOSS, DAMAGE OR MISHANDLING OF YOUR IMAGES OR PHOTOGRAPHS BY MOMENTO FOR ANY REASON WHATSOEVER OR IF MISUSE OF YOUR IMAGES OR PHOTOGRAPHS IS MADE BY A THIRD PARTY OR IF YOU CLAIM THAT THERE HAS BEEN A BREACH OF A CONDITION OR WARRANTY WHICH CANNOT BE EXCLUDED BY THE TERMS, MOMENTO'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT MOMENTO'S OPTION, TO EITHER:
- RETURN THE PRICE YOU PAID; OR
- REPAIR OR REPLACE THE PHOTO PRODUCT IF IT IS RETURNED TO MOMENTO WITH A COPY OF YOUR INVOICE.
- WE ASSUME NO LIABILITY FOR POOR IMAGE QUALITY DERIVED FROM LOW-RESOLUTION IMAGES, MISUSE, MISHANDLING OR INADEQUATE MAINTENANCE OF THE PHOTO PRODUCT(S), THE LONGEVITY OF THE PAPER IN THE PHOTO PRODUCT(S) OR MISSPELLINGS IN TEXT IN THE PHOTO PRODUCT(S). WE WILL NOT IN ANY CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS OR LOSS OF PROFIT OR REVENUE OR LOSS OF OPPORTUNITY) FOR ANY BREACH OF ANY WARRANTY OR OTHER BREACH OF THESE TERMS.
- EXCEPT TO THE EXTENT REQUIRED BY LAW, WE HEREBY EXCLUDE ALL LIABILITY TO YOU WITH RESPECT TO THE SALE OR USE OF THE PHOTO PRODUCT(S) FOR LOSS OF PROFITS OR FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INDIRECT LOSS OR DAMAGE OF ANY KIND ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OF PROFITS OR DAMAGES, AND IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE PRICE OF THE PHOTO PRODUCT(S) SOLD TO YOU UNDER THE TERMS.
- YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS AND EXCEPT AS EXPRESSLY STATED IN THE TERMS NO WARRANTY, ASSURANCE, PROMISE OR REPRESENTATION HAS BEEN MADE REGARDING THE QUALITY, FITNESS OF USE, SUITABILITY OR MERCHANTABILITY OF THE PHOTO PRODUCT(S) OR REGARDING ANY OTHER MATTER OR THING WHATSOEVER. YOU AGREE THAT YOU HAVE RELIED ON YOUR OWN KNOWLEDGE, SKILL AND JUDGMENT IN ENTERING INTO THE TERMS.
- INTELLECTUAL PROPERTY
Content of the Site
- Momento does not claim any ownership rights in any images or photographs submitted to Momento. You warrant that you are the owner of copyright or have the express authorisation of the owner of copyright in the text, images and photographs that you submit to Momento.
- Momento will not accept any liability for breaches by you of the copyright of any other party. You indemnify Momento for all costs and damages that Momento may suffer arising from any allegation that Momento is liable for any infringement of copyright arising from Momento's use, reproduction, modification, adaptation, alteration or transmission of the text, images or photographs submitted by you to Momento.
- You are solely responsible for complying with all relevant copyright laws that apply to you and your conduct. You acknowledge that you are aware that a breach of such laws may have serious consequences for you including both civil and criminal liability.
- Unless provided otherwise in these terms and conditions, all copyright subsisting in all information, text, material, graphics and other material on the Site ("Content") is owned by Momento unless expressly indicated otherwise.
- You must not modify, copy, reproduce, communicate to the public, transmit or distribute the Content in any way except as expressly provided by Momento.
- All trade marks displayed on the Site are owned by Momento, unless expressly indicated otherwise.
- As a result of licence agreements entered into by Momento, content in which third parties own intellectual property rights (including copyright and trade marks) may be available to you on the Site to use in Photo Products (“Licensed Content”). Relevant third parties retain all rights in Licensed Content, and you agree not to use Licensed Content except as specifically permitted by these terms. In particular, Momento has reached agreement with the Walt Disney Company (Australia Pty Ltd) (“Disney”) to make certain materials available to you (“Disney Content”).
- Use of Licensed Content
- will not use any Disney Content in any Photo Product that is not, in Disney’s opinion, consistent with Disney’s family-oriented philosophy and image (for example, but without limitation, in association with any material that is lewd, lascivious or obscene or contains sexual allusions or reference to alcohol or drug abuse, firearms, profanity or criminal activity);
- acknowledge that Disney Content and any product created through this site that includes Disney Content is intended solely for personal, non-commercial use;
- acknowledge that any Photo Product that contains Disney Content may only be delivered to addresses within Australia and New Zealand;
- will not use Disney Content or any product created through this site that includes Disney Content for any business or organisational purpose;
- will not sell any Photo Product or other product that contains Disney Content that has been supplied to you by Momento;
- will not download Disney Content from the Site other than when we provide you with a low-resolution pdf (or similar) file of your finalised Photo Product(s) for approval prior to printing; and
- will not attempt to capture screen images of the Site insofar as those captures contain Disney Content.
- Notwithstanding clause 4:
- you acknowledge that we may not be able to supply and/or deliver any Photo Product or other product containing Licensed Content outside the territory or territories for which we are licensed to use that content (for example, as at the date of these Terms, Disney Content may only be supplied to people located in Australia and/or New Zealand);
- if a licence granted to Momento in respect of Licensed Content is terminated:
- we will use good faith endeavours to supply any Photo Product or other product already ordered from us that contains such content; and
- you acknowledge that access to any File (including any archived File) that contains Licensed Content may no longer be available or may only be available for a limited period following such termination (for example, as at the date of these Terms, for 6 months following termination of the licence granted by Disney to Momento in respect of Disney Content).
- IMAGES, PHOTOGRAPHS AND CONTENT NOT PERMITTED ON THE SITE
- Momento reserves the right at its sole and absolute discretion to refuse to reproduce, modify, adapt, alter or transmit any text, images, photographs or other material submitted by you to Momento.
- Without limiting the above paragraph in any way, Momento reserves the right to refuse to reproduce, modify, adapt, alter or transmit any text, images, photographs or other material that Momento considers objectionable or contrary to any law or that breaches the Terms.
- You must not use the Site in any manner or for any purpose that is unlawful or in any manner that violates any right of Momento or which is prohibited by the Terms.
- We reserve the right to terminate this agreement and your membership immediately by giving you notice in writing.
- You may terminate this agreement and your membership by giving 4 weeks notice in writing to Momento.
- On termination, we will remove the File(s) and all other material submitted by you to Momento from the Site.
- We are not responsible for any loss of data on termination resulting from the removal of, or deletion of, the File or any other material submitted by you to Momento.
- GENERAL PROVISIONS
- “Photo Product” means the printed and digital copy of any photobook file or any other photo-related product file (such as for printing on paper or other materials) you create using the Services.
- This agreement is governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of any competent court within New South Wales.
- No waiver by either party of any term or condition of this agreement will, in any instance, constitute or be deemed to constitute a waiver of any such term or condition in the future or of any subsequent breach thereof.
- Nothing in this agreement shall constitute a partnership or joint venture between you and Momento.
- If any term or part of this agreement is declared to be unenforceable or void by a court of competent jurisdiction for any reason whatsoever, such provisions as are not found to be unenforceable or void will remain in effect.