STOCK LICENSING + TERMS OF SERVICE

 

PICKY LIMITED STOCKSHOT LICENCE AGREEMENT   

This License Agreement between you and Picky Limited governs the photographs you download from our site. Please read this Agreement carefully. By purchasing and downloading any Photograph on this site, you accept and agree to the terms of this Agreement. If you are unsure about a potential use, please contact us before using our resources at hello@picky.co.nz 

The use of any Photograph in any racist, homophobic, transphobic, or sexist content is prohibited. It may not be used in projects or for purposes that actively or passively aim to limit the rights of displaced persons, people with disabilities or human rights.
 

Definitions
3. In this Agreement:

  • 3.1. Agreement means these terms and conditions.
  • 3.2. Commencement Date means the date you purchase and download the Photograph from our Site.
  • 3.3. Copyright means:
    3.3.1. any copyright under the Copyright Act 1994;
    3.3.2. any copyright under the law of a country other than New Zealand; and 3.3.3. rights in the nature of, or analogous to, the rights in 3.3.1 and 3.3.2 under the law of New Zealand or any other country (including future copyright and rights in the nature of or analogous to copyright).
  • 3.4. Photograph means the digital image file or files which are displayed on our Site and you have purchased and downloaded.
  • 3.5. Photographer means the owner of the Copyright in the Photograph.
  • 3.6. Picky, us and our means Picky Limited.
  • 3.7. Related Company has the meaning as defined in the Companies Act 1993. 3.8. Site means Picky’s website and user interface on which it displays the Photographs and makes them available for download by you.
  • 3.9. You, Licensee and your refers to you as the person who purchases and downloads the Photograph from the Site thereby agreeing to be bound by this Agreement.

Interpretation
4. In this agreement, unless the context clearly indicates otherwise:
  • 4.1. words or phrases defined in the Copyright Act 1994, as amended, will have the same meaning if used in this agreement unless the contrary intention is shown or the meaning is inconsistent in the context;
  • 4.2. this agreement may not be construed adversely to a party only because that party was responsible for preparing it;
  • 4.3. headings are for convenience only and do not affect the interpretation of this agreement;
  • 4.4. references to a person include a corporation and vice versa;
  • 4.5. references to a party include that party's executors, administrators, successors and permitted assigns;
  • 4.6. every obligation entered into by two or more parties binds them jointly and each of them severally;
  • 4.7. where any word or phrase is defined in this agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
  • 4.8. "includes", "including" and similar expressions are not words of limitation; 4.9. the singular includes the plural and the plural includes the singular; and
  • 4.10. a reference to any agreement or other document annexed to or referred to in this agreement includes any amendments to it and any documents in addition to or in substitution for it which has been approved in writing by the parties to this agreement.


Licence Types
5. Picky makes Photographs available on its Site for purchase and download by you on two separate terms:

  • 5.1. On a non-exclusive basis (All Media License); or
  • 5.2. On a 12-month licence freeze basis which means that the Photograph will not be made available for any future purchase or download during the 12 months from the Commencement Date of this Agreement (12-month License Freeze); (collectively the License).

Grant of All Media License
6. If you purchase and download a Photograph on a All Media License basis, then Picky grants you a non-exclusive, worldwide, perpetual right and license on the terms and subject to the conditions and limitations set out in this Agreement, to:
  • 6.1. use, copy, edit, modify, manipulate, couple and synchronise the Content in any independently authored derivative or other work in any media now known or hereafter devised (including in-context works for advertising and promotion), which incorporates the Photograph together with other substantial independently created works, and is created by or for you or on your behalf as permitted by the terms of this Agreement (Production). Productions include books, periodicals and the public display and performance of the Photograph as part of a public event (including performances of the same that are broadcast and/or streamed); /
  • 6.2. directly or indirectly copy, publish, publicly display and perform, transmit, broadcast, telecast and distribute the Photograph within such Productions world-wide and by any means and allow others to do so; and 6.3. use the tags, meta data, designations, disclaimers, restrictions, annotations, information and documentation that are available on the Site or otherwise provided by us to you with, in or otherwise relating to the Photograph (Photograph Information) to facilitate your use of the Photograph.

12 Month License Freeze
7. If you purchase and download a Photograph on a 12-month License Freeze basis:

  • 7.1. Picky grants you a non-exclusive, worldwide right and license on the terms and subject to the conditions and limitations set out in this Agreement to to use the Photograph on the same terms as clauses 6.1 to 6.3 above.
  • 7.2. At the time of purchase and download, you must declare to Picky on the form provided the date from which the Photograph will be used by you in the public domain (Material Live Date).
  • 7.3. Picky will remove the Photograph for purchase and download by third parties from the Site immediately and only reinstate the Photograph on the Site 12 months after the Commencement Date.
  • 7.4. You acknowledge that the Photograph may have been purchased and downloaded by third parties on an All Media License basis pursuant to the terms at clause 6 above at any time prior to your purchase and download.
  • 7.5. You will be notified within 30 days of the end of the 12 month license freeze period ending, you will have the option to purchase an additional 12 month term license freeze period of the original purchase price (Renewal).
  • 7.6. After the 12 month license freeze period ends without Renewal, the Photograph will be made available on Picky’s site for third-party purchase and download, and the terms of the License shall revert to the non-exclusive All Media License terms per clause 6 above.

License Restrictions
8. The following restrictions apply to the License for the Photograph:

  • 8.1. No reverse Engineering: For 3D models or After Effects or Photoshop PSD templates, you may not reverse engineer, decompile, or disassemble any part of any source code contained within the Photograph or avoid, bypass, remove or impair any technological measure that limits access to the Photograph.
  • 8.2. No Use in Trademarks or Logos: You may not incorporate any Photograph into a logo, trademark or service mark.
  • 8.3. Industry & brand Exclusions: Some Photographs have certain exclusions across specific industries, brands, services or products as requested by the Photographer personally. If these have been excluded you will see this in the product overview listing on the Site, prior to purchasing the Photograph. The License will terminate automatically without notice from us should you use the Photograph for an industry, brand, service or product that has been specifically excluded. Please review this carefully prior to purchasing.
  • 8.4. Sensitive Use: You may not use any Photograph in any context that would be unflattering or unduly controversial to a reasonable person, including use related to the promotion, advertisement or endorsement of any political party, candidate, or elected official, or in connection with any political policy or viewpoint, or as suffering from, or medicating for, a physical or mental ailment.
  • 8.5. No Unlawful Use: You may not use any Photograph in, a pornographic, unlawful or defamatory context or manner, including use (i) in connection with pornography, adult videos, adult entertainment venues, escort services, dating services, or the like; (ii) in connection with the advertisement or promotion of tobacco products; or (iii) depicting a person in the Photograph as engaging in acts of moral turpitude or criminal activity.
  • 8.6. Retention of Rights to the Content: You will not acquire, and we and/or the Photographer will retain, all right, title, and interest in and to all of the Copyright, trademarks, trade secrets and other proprietary rights in the Photograph that are not expressly granted to you by the terms of this Agreement.
  • 8.7. Depicted IP: Notwithstanding anything else in this Agreement, the License does not include, and except for locations for which the Photograph states that we have a property release, we make no warranties with regard to, any building, house, trademark, trade dress, logo, copyrighted design, art, architecture or other works that may be depicted in the Photograph.
  • 8.8. Contact Us If You Need Rights for Use Not Permitted By this Agreement: If you need to use any Photograph in a manner that is not permitted by this Agreement, contact Picky at hello@picky.co.nz
  • 8.9. You may not transmit, transfer or sell, modify, publish, reproduce, create derivative works from, distribute, reverse engineer, display or in any way exploit any of the Photograph, in whole or in part, except as otherwise expressly permitted in this Agreement.

Payments
9. License Fee: In consideration for the License for the Photograph, you will pay Picky the amount in New Zealand dollars as displayed on the Site as the cost of the License using the payment methods Picky makes available to you (License Fee).

10. Sale of License Final: All sales of Licenses are final, and we are under no obligation to refund the License Fee paid by you for the Photograph under any circumstances, except upon a material breach of one of our express representations and warranties contained in this Agreement for the Photograph.

11. Refund: If you request a refund, and we, in our sole discretion, determine to provide you with a refund, the license granted in this Agreement for the Photograph will be rescinded as if never granted. Any refund will be made by such means as we determine is appropriate.

Merchandise
12. The license does not include a right to use the Photograph in Merchandise.

13. Merchandise includes items of physical products sold or distributed by or for you, including toys, games, physical electronic products, and paper goods, such as greeting or post cards, business cards, product packaging, product tags, calendars, stationary, novelty goods, trading cards, tickets, payment cards, bank checks, or apparel. Using the Photograph in Merchandise includes, but is not limited to, the right to install the Photograph on a computer, cell phone or other electronic device located in a retail establishment where the Photograph is included for the purpose of demonstrating the capabilities of the device if the device does not permit transmission or storage of the Photograph.

14. Merchandise does not include (i) books or periodicals, or (ii) music, video or audiovisual Productions that are in physical media (e.g., in a CD, DVD), or (iii) packaging or informational or promotional collateral that accompanies such a Production containing the Photograph where the Photograph is not sold separately from the Production – all of which are deemed to be included in the term Production.

Credit Attribution
15. Where crediting is customary or where other such credits are provided, you will use reasonable efforts to accompany the Photograph with a credit line that reads "Stock media provided by Picky Limited” or substantially similar language and credit the Photographer as noted on the Site at the time the Photograph was purchased and downloaded.

Intellectual Property
16. Nothing in this license conveys ownership of any intellectual property of Picky.

Termination of License
17. In the event the License is terminated due to your violation of this Agreement, all license fees previously paid will be considered nonrefundable. If your License is terminated, you agree to cease use of the Photograph immediately.

18. The License will terminate automatically without notice from us if you fail to cure a material breach or other material failure to comply with any provision of this Agreement within 14 days of written notice from us of the same. Upon termination, to the extent reasonably practical, you must immediately: (i) stop using the Photograph; (ii) delete or remove the Photograph from your premises, computer systems and storage (electronic or physical); and (iii) where applicable, ensure your licensees do the same.

Indemnity
19. You agree to indemnify, defend and hold Picky and its Related Companies, and their respective directors, officers, employees, shareholders, partners, licensors and agents (collectively, the Picky Parties) harmless from and against any and all claims, liability, losses, costs and expenses (including lawyers’ fees on a solicitor and client basis) incurred by any of the Picky Parties in connection with:

  • (i) any use or alleged use of the Site by you or using your details by any person, whether or not authorised by you; or
  • (ii) any breach by you of this Agreement.


Liability
20. Where you are not an individual and/or are acquiring content for business purposes you agree and acknowledge the provisions of the Consumer Guarantees Act 1993 will not apply. Nothing in this Agreement will affect or limit any rights a person who is an individual and is not taking a licence for business purposes may have under the Consumer Guarantees Act.

21. The Site, including any Photograph contained on or downloaded from the Site, is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to the implied representations, warranties or conditions of merchantability, or fitness for a particular purpose.

22. Picky does not represent or warrant that:

  • 22.1. the Site or the Photograph will meet your requirements or that use will be uninterrupted or error free.
  • 22.2. the Site and Photographs are free of viruses or similar contamination or destructive features.

23. You assume all responsibility and risk for the purchase and download of Photographs on the site.

Laws of New Zealand
24. The Site is controlled, operated and administered by Picky in Auckland, New Zealand. The Site can be accessed across New Zealand, and overseas. As each country has laws that may differ from those of New Zealand, you acknowledge and agree that this Agreement will be governed under the laws of New Zealand and you agree to submit to the exclusive jurisdiction of the New Zealand Courts. Any dispute which may arise as to the interpretation of this Agreement or as to any matter arising out of this Agreement will be referred to a single arbitrator if the parties can agree upon one, or otherwise to an arbitrator appointed by the president for the time being of the New Zealand Law Society. Such arbitration will be conducted in accordance with the Arbitration Act 1996 or any amendment or re-enactment thereof and will take place in Auckland.

25. If Picky pursues a claim or proceedings in court or arbitration to enforce any of its rights, or to collect any License Fee, you agree to reimburse Picky for its legal fees, costs and disbursements on an indemnity basis.

Third party claims
26. If you learn that any Photograph is subject to a threatened or actual third party claim of infringement, violation of another right, or any other claim for which we may be liable, you will promptly notify us of any such claim.

27. If we learn of such a claim from any source and we, in our sole good faith discretion, determine that the claim raises an inappropriate legal risk, upon notice from us, you will (i) remove the Photograph from your computer systems and storage devices (electronic or physical), and (ii) cease any future use of the Photograph at your own expense if possible. If you do remove and cease use of the Photograph, we will either refund your License Fees for the applicable Photograph or without charge provide you with other content that we determine with your consent, not to be unreasonably withheld or delayed, is comparable, subject to the other terms and conditions of this Agreement.

Representations, Warranties and Disclaimers
28. Our Warranties: We warrant that we have the right and authority to enter into and grant the rights in the Photograph granted to you in this Agreement, subject to all applicable limitations, disclaimers and exclusions in this Agreement.

29. Limited Warranty: We warrant that there are no material defects in the Photograph which would prevent it from being downloaded from the Site and used as permitted by this Agreement. If there are material defects in the Photographs, your exclusive remedy under this Agreement is: (i) upon request to us within 30 days of the Commencement Date, you will be permitted to download the Photograph again to obtain a replacement copy of the Photograph; or (ii) if we determine, in our sole discretion, that defects would continue to prevent it from being downloaded from the Site or used as permitted by this Agreement successfully, we will refund the License Fee paid by you for the Photograph.

30. Content Information Disclaimer: While we have made reasonable efforts to correctly categorize, keyword, caption, description and title the Photograph, we do not warrant the accuracy of such information.

31. Warranty Disclaimer: We only have model or property releases for Photographs where expressly indicated on the Site.

32. Representation About Your Information: You represent that all information provided to us by you is accurate and true, including all information relating to you and credit card or other payment information, and you agree to update such information as is necessary for such information to continue to be accurate and complete.

33. Representation About User: If you are entering into this Agreement on behalf of your employer and/or any other person, you represents and warrants that (i) you have the full right and authority to execute, deliver and perform this Agreement on behalf such person, and (ii) this Agreement is a binding Agreement of such person, enforceable against such person in accordance with its terms. In the event that you do not have such right, power and authority, you agree that in addition to all rights and remedies available against you or anyone else relating to violation or infringement of intellectual rights, you will be personally liable to us for any breaches of the terms of this Agreement or violation and infringement of intellectual rights in the Photograph by your employer, such person, and its representatives.

Consent to Electronic Communications:
34. You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

General Provisions
35. No partnership or agency relationship: Nothing contained in this agreement will be deemed to constitute partnership between the parties. Nothing contained in this agreement will deem either party to be the agent of the other party and neither party will engage in any conduct or make any representation which may suggest to any person it is for any purposes, the agent of the other party.

36. Entire agreement: This agreement sets out the entire agreement between the parties and it replaces all previous communications, representations, inducements, undertakings, agreements and arrangements between the parties in respect of its subject matter. This agreement may not be modified except by a written agreement signed by each party.

37. No waiver: Failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

38. Severance: If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement.

39. Costs of this agreement: Each party will pay its own costs incurred in the preparation, execution, completion and carrying into effect of this agreement.

40. Further assurances: Each party must promptly execute all documents and do all things necessary or desirable to give full effect to the arrangements set out in this agreement.

41. Preservation of existing rights: The expiration or termination of this agreement does not affect any right that has accrued to a party before the expiration or termination date.

42. No merger: Any right or obligation of any party that is expressed to operate or have effect on or after the completion, expiration or termination of this agreement for any reason, will not merge on the occurrence of that event but will remain in full force and effect.

43. Assignment: This Agreement may be transferred or assigned by Picky in its sole discretion.

Other
44. Any questions, just ask. We’re always happy to clarify at hello@picky.co.nz