Date of Last Revision: 11 October 2012

PLEASE READ THESE TERMS AND CONDITIONS OF USE ("TERMS OF USE") CAREFULLY. BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE.

Welcome to Photo Frog! We love photography and videos and for the most part Photo Frog (the "Site") is all about photos, videos and camaraderie. For the protection of our partners, suppliers, you and us, however, the Terms of Use are very important.

This Site is owned and operated by Photo Frog ("Photo Frog") a division of Think Open Software Pty Limited. These Terms of Use apply to your access to, and use of, the Site, your use of any digital photography, videos, media hosting services, other services provided on or through this Site (the "Services"), and to your purchase of any photographic prints, videos or other products ("Products") from Photo Frog. However, these Terms of Use don’t alter in any way the terms or conditions of any other agreement you may have with Photo Frog. Your use of the Site and the Services and your purchase of Products is expressly conditioned upon your agreement to these Terms of Use. You consent to our communicating with you about the Site, the Products and the Services by email and/or system messages, and if necessary, by regular mail or telephone.

Photo Frog reserves the right to change any provision of these Terms of Use, and any other terms, policy or guideline governing your use of the Site, at any time in its sole discretion. Such changes will be effective immediately upon posting such revisions on the Site, and you waive any right you may have to receive specific notice of such changes. Your continued use of this Site or the Services or the purchase of any Products following the posting of such changes will confirm your acceptance thereof. You should frequently review these Terms of Use and any other applicable policies or guidelines on the Site.

A. GENERAL TERMS

  1. Privacy

    Please refer to the Site's Privacy Policy for information on how we collect, use and disclose personal information from users of the Site. You understand and agree that we store and process your personal information on computers located in Europe.

  2. Sales Terms

    Please refer to our Terms of Sale as set forth in Section B below for the additional terms, conditions and policies applicable to your purchase of Products through the Site. By ordering Products through the Site, you agree to be bound by and accept the Terms of Sale, which are a part of these Terms of Use.

  3. License Agreement

    Photo Frog's Site enables any person or entity who owns or is otherwise authorized to license Media (the "Content Owner") to post such Media on the Site and to use Photo Frog's shopping cart to facilitate the license of such Media by the Content Owner through the Site. These licenses are made directly between the user and the Content Owner and are merely facilitated by Photo Frog. Photo Frog account holders may make Media available for license to Site users through the Site by setting prices for them in the pricing tool. By posting any Media and indicating the Media may be licensed by Site users, Content Owners agree to be bound by and accept the terms and conditions set forth in Section D below, which are a part of these Terms of Use. If you license any Media from a Content Owner through the Site, you agree to the terms of the applicable end user license agreement (the Commercial Use License or Personal Use License), which are accessible through the foregoing links and are a part of these Terms of Use.

  4. Copyright And Limited License

    The Site and all Media, text, code and other content and materials on the Site and the selection and arrangement thereof (collectively, the "Site Materials") are the property of Photo Frog or its licensors or users and are protected by South African and international copyright laws.

    Photo Frog grants you a limited, non-sublicensable, revocable license to access and use the Site solely in accordance with, and subject to, the terms set forth in these Terms of Use and any other applicable terms or agreements you may enter into with Photo Frog. Except as otherwise expressly permitted in writing, the license does not include, and you agree to refrain from:

    1. the collection, copying or distribution of any portion of the Site or the Site Materials;
    2. any resale, commercial use, commercial exploitation, distribution, public performance or public display of the Site or any of the Site Materials;
    3. modifying or otherwise making any derivative uses of the Site or any of the Site Materials;
    4. scraping or otherwise using any data mining, robots or similar data gathering or extraction methods;
    5. with the exception of your own Media, or others' Media available for download, the downloading of any portion of the Site, the Site Materials or any information contained therein; or
    6. any use of the Site or the Site Materials other than for their intended purposes.

    Any use of the Site or of any Site Materials other than as specifically authorized herein, without the express prior written permission of Photo Frog or the Content Owner, is strictly prohibited and will terminate and constitute a breach of the license granted herein.

  5. Repeat Infringer Policy

    Photo Frog has adopted a policy of terminating, in appropriate circumstances and at Photo Frog's sole discretion, account holders who are deemed to be repeat copyright infringers. Photo Frog may also, at its sole discretion, limit access to the Site and/or terminate any account holders who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

  6. Trademarks

    "Photo Frog", the Photo Frog logo, the look and feel of the Site, and any other Product or Service names, logos or slogans of Photo Frog contained in the Site are trademarks of Photo Frog (collectively, the "Photo Frog Marks") and may not be copied, imitated or used without the prior written permission of Photo Frog. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners.

  7. Hyperlinks

    You may create a text hyperlink to the Site, provided such link does not portray Photo Frog or any of its Products or Services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked by Photo Frog at any time. Further, you may not frame the Site without Photo Frog's express written consent.

    Photo Frog makes no representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site, or Web sites linking to the Site. Photo Frog provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation or endorsement of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern.

  8. Third Party Content

    Photo Frog may host third party content on the Site ("Third Party Content") solely as a convenience to its users. Such inclusion does not imply affiliation, endorsement, approval, or control by Photo Frog of any Third Party Content. Photo Frog makes no claim or representation regarding, and accepts no responsibility for, such Third Party Content or for the quality, accuracy, nature, ownership or reliability thereof. Users use such Third Party Content at their own risk.

  9. "Image Vault" Account

    Photo Frog provides the opportunity to obtain a "Image Vault Account" for increased storage capability. The Image Vault service is provided through Amazon.com's Simple Storage Service ("Amazon S3") and is governed by the terms of service for Amazon S3, in addition to these Terms of Use. If you choose to avail yourself of the Image Vault service, you should review Amazon.com's terms of service, as well as its policy regarding privacy and data gathering practices, and any other applicable policies, prior to use of the Image Vault service. In order to utilize the Image Vault services, you must sign up for and obtain an Amazon S3 account. The agreement pertaining to your Amazon S3 account is directly and strictly between you and Amazon.com, and Photo Frog is not a party to that agreement. Accordingly, any questions regarding your Amazon S3 account must be directed to Amazon.com, including but not limited to questions regarding billing. This service is provided solely as a convenience to you and does not imply endorsement, approval, control or adoption by Photo Frog of Amazon S3. Photo Frog makes no claim or representation regarding, and accepts no responsibility for, your use of Amazon S3, or for the quality, accuracy, nature, ownership or reliability thereof. You use Amazon S3 and Image Vault at your own risk. Please note that when files are deleted by emptying your trash, those files cannot be recovered by Photo Frog or Amazon.

  10. Advertisements And Promotions; Third Party Products and Services;

    Photo Frog account holders (on their own sites) or Photo Frog (on public areas of the Site) may run advertisements and promotions from third parties on the Site or facilitate the sale of certain products or services by third parties through the Site. Your business dealings or interactions with such third parties, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party, and Photo Frog does not endorse, approve, or control any such products, services, advertising or promotions. Photo Frog is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third party products and services on the Site.

  11. Your Account.

    Certain activities on the Site require you to register and create an account. In order to create an account, you must be 18 years of age or older. By registering, you represent and warrant that you are over 18 and that all information you provide in the registration form ("Registration Data") is complete and accurate. Photo Frog reserves the right to refuse service to anyone at any time, with or without cause in its sole discretion. You agree to keep your registered email addresses and other Registration Data current and complete, as Photo Frog may send important notices about your account or the Services to that email account.

    In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Photo Frog's systems and customers, or to ensure the integrity and operation of Photo Frog's business and systems, Photo Frog may access and disclose any information from your account it considers necessary or appropriate, including, without limitation, user profile information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, and posted content. You consent to such disclosure and agree that Photo Frog's right to disclose any such information as described above shall govern over any contrary terms in any agreement or policy of Photo Frog. For information regarding other ways that Photo Frog may use or disclose your Registration Data, please see the Photo Frog Privacy Policy.

  12. Free Account Expiry.

    Photo Frog offers a free account to allow customers to try out the service free of charge. In order to prevent unnecessary costs on unused accounts, Photo Frog reserves the right to terminate any free accounts that are considered to be dormant. A free account will be considered dormant when:

    1. An account has not generated any sales within a 12 month period, or
    2. There has been no activity by any users of an account within a 12 month period

    Photo Frog will provide at least 30 days notice to the account holders of any accounts that are about to expire

  13. Account Security

    You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password and to your computer while logged into the Site. You agree to accept responsibility for all activities that occur under your account or from your computer. We endeavor to use reasonable security measures to protect against unauthorized access to your account and to any User Content you designate as unlisted, hidden or password-protected. We cannot, however, guarantee absolute security of your account, your User Content or the personal information we collect, and we cannot promise that our security measures will prevent third-party "hackers" from illegally accessing the Site or its contents. You agree to immediately notify Photo Frog of any unauthorized use or your account or password, or any other breach of security, and to accept all risks of unauthorized access to the Registration Data and any other information you provide to Photo Frog.

  14. DISCLAIMER OF WARRANTIES

    THE SITE, THE SITE MATERIALS, THE PRODUCTS AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, Photo Frog DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AS TO THE SITE, THE SITE MATERIALS, THE PRODUCTS AND THE SERVICES.

    PHOTO FROG DOES NOT REPRESENT OR WARRANT THAT THE SITE MATERIALS OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE, ITS SERVERS OR EMAIL SENT FROM Photo Frog OR THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Photo Frog IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOS OR VIDEOS. Photo Frog ALSO MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SITE AND SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR ANY MODIFICATION, SUSPENSION, UNAVAILABILITY, OR DISCONTINUANCE OF THE SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREON.

  15. LIMITATION OF LIABILITY

    IN NO EVENT SHALL PHOTO FROG OR ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE OR VIEW THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE SITE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR RELIANCE ON ANY INFORMATION OBTAINED FROM PHOTO FROG, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY TERMINATION, SUSPENSION OR OTHER FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PHOTO FROG'S RECORDS, PROGRAMS OR SERVICES.

    IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PHOTO FROG, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE, THE SERVICES, THE PRODUCTS, THE USER CONTENT OR THE SITE MATERIALS, EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO PHOTO FROG FOR ACCESS TO OR USE OF THE SITE OR THE SERVICES OR FOR THE PURCHASE OF PRODUCTS.

    CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

  16. Indemnity

    You agree to defend, indemnify and hold harmless Photo Frog and its affiliates and subsidiaries (collectively, the "Indemnified Parties"), and the Indemnified Parties' independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising out of or related to any User Content you post or otherwise transmit on or through the Site, your use of or inability to use the Site, the User Content, the Site Materials or the Products or Services, or the licensing of your Media to third parties through the Site, including any actual or threatened suit, demand or claim made against any of the Indemnified Parties and/or their independent contractors, service providers, employees, directors or consultants, arising out of or relating to your User Content, your conduct, your violation of these Terms of Use or your violation of the rights of any third party.

  17. Applicable Law

    Your use of the Site is subject to all applicable local, state, national and international laws and regulations. These Terms of Use and your use of the Site shall be governed by and construed in accordance with the laws of the Republic of South Africa applicable to agreements made and to be entirely performed within South Africa, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms of Use shall be filed only in the state and federal courts located in Gauteng, South Africa and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms of Use.

  18. Severability

    If any provision of these Terms of Use shall be deemed invalid, unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

B. ADDITIONAL TERMS OF SALE

Users with a Photo Frog account may license digital version of his or her Photos or Videos.

  1. Rights Granted by Content Owner

    By uploading or posting Photos or Videos to be licensed to Site users using Photo Frog's shopping cart, the Content Owner hereby grants to Photo Frog the right to facilitate the licensing by Content Owner of Photos or Videos posted on Photo Frog to a licensee according to the licensing designation ─ a Commercial Use License or Personal Use License ─ identified by the Content Owner upon submission of the Photos or Videos. The Content Owner can designate the applicable license, set the license fees and check sales reports from the Store Admin when logged in.

  2. Content Owner Responsibilities

    1. The Content Owner agrees to pay the relevant transaction fees levied on sales as stipilated on Photo Frog's pricing page.
    2. Content Owner is responsible for all Photos or Videos posted to the Site including without limitation the:

      1. designation of and update of Photo or Videos license type ─ either personal or commercial ─ through the pricing tool
      2. the removal, if necessary, of Photos or Videos from the Site.
  3. Media Submission and Licensing

    Photos or Videos submissions to the Site may be rejected or removed at any time for any reason or for no reason in Photo Frog's sole discretion.

    Photos or Videos designated for commercial license should be free from any distinguishable third party names, trademarks, logos, copyright designs, works of art, architecture, or any other depictions requiring additional rights. Content Owner understands and agrees that all Photos or Videos are licensed directly by the Content Owner to the licensee and the license type and the license fees for Photos or Videos within the Site will be chosen by Content Owner. Photo Frog merely facilitates and enables such license and is not responsible for the Photos or Videos.

    So long as Content Owner has agreed to make the Photos or Videos available through the Site there will not be any restraint on the licensing of such Photos or Videos through the Site to any Site users to the fullest extent possible, according to the type of license provided by the Content Owner.

  4. Representations and Warranties of Content Owner

    Content Owner represents and warrants to Photo Frog that:

    1. Content Owner owns (or has legal right to represent and license) all copyright and other rights, title and interest in and to all Photos or Videos submitted to the Site and has the right to grant all licenses granted herein without violating the rights of any third party;
    2. if the Content Owner who is agreeing to this Terms of Use is an agent of the copyright owner(s), then the Content Owner has been granted full authority of the copyright owner(s) to enter into this agreement;
    3. all information provided to Photo Frog through the Site or by any all other means concerning all Photos or Videos, to the best of its knowledge, is true and accurate; and
    4. all Photos or Videos submitted or posted on the Site by Content Owner have all necessary releases and permissions required to grant the licenses granted under the applicable license, including without limitation valid Model Releases and Property Releases for Photos or Videos depicting recognizable people (living or dead) and private properties, and all written permission regarding all distinguishable trademarks.
    5. all Media submitted or posted on the Site by Content Owner are of the best quality and suitable for good quality printing of up to A1 size as determined by Photo Frog.
  5. Definitions

    Capitalized terms used but not defined in these Terms of Use above or on the Site will have the following meanings:

    "Commercial Use License" means a licensing type in which the licensee is entitled to use the Photos or Videos subject to the commercial use license.

    "Model Release" means a written release signed by or on behalf of any living person or the estate of a deceased person who is depicted in whole or in part in any Photos or Videos.

    "Personal Use License" means a licensing type in which the licensee is entitled to use the Photos or Videos subject to the personal use license.

    "Property Release" means a written release from the owner and/or occupier of any property that is depicted in whole or in part in any Photos or Videos.