Terms and Conditions of trade

IMAGES IN SPACE LIMITED (hereinafter referred to as "we" or "us") provides all services to the customer ("you") on the following terms and conditions:

1. 1. IMAGES
   1. 1.1. Ownership: We acknowledge and agree that you are the sole owner of the intellectual property (including the copyright) and all other rights in the photographs of the products that you deliver to us (the "Images"). In respect of the Images and web site we have the absolute right to sell lease or licence the said Images and web site.
2. 2. DATABASE MEMBERSHIP
   1. 2.1. Membership: You will become a database member, if you have filled out the registration form requesting a login and password and we have accepted your application.
   2. 2.2. Rights of Members: If you become a database member and pay the relevant fee as determined by our then current rates, we will:
      1. email your login details to you at the email address you provide in the registration area after we have accepted your request for access and enabled your login;
      2. while you remain a fully paid database member, grant you a personal, non-exclusive, non-transferable licence with no right to sub-licence, to access the Images on the web site, to store the Images at your site, and to otherwise use the Images, in each case in New Zealand for your own business purposes, and without using any trade marks contained in the Images as trade marks during the term of this agreement and without using the Images in any way to compete with us; and
      3. while you remain a fully paid database member, maintain the web site to ensure that you are able to enjoy the rights granted in these terms.
   3. 2.3. You will not allow any other person to use the Images, including by using or allowing the viewing of the Images on the Internet or any other system accessible by the public.
   4. 2.4. Costs: As well as the normal database membership fee which is payable annually, the member will be required to pay such further costs as we may decide from time to time and notify to the member in writing for the use of each Image taken from the database. Provided that the terms and conditions of this agreement are complied with, no additional fees will be charged.
3. 3. PHOTOGRAPHY
   1. 3.1. Delivery: You will, at your own cost and risk, deliver the product(s) to us at our normal business address or as we direct.
   2. 3.2. Photography: After receiving the Products from you, we will photograph them and store the Images on our web site and any other medium we may decide on payment of the relevant fee as determined by our then current rates.
   3. 3.3. Ownership: We acknowledge that you are the sole owner of the intellectual property (including the copyright) in the Images we create from photographing your products.
   4. 3.4. Disposal of Product: All Products that have been photographed will be returned to you at your cost and risk when the photography is complete. Otherwise we will donate the Products on your behalf to a suitable non-profit organisation.
   5. 3.5. Supplied Images: We have the right to refuse any image of product supplied to us for inclusion in the database which we in our sole discretion deem not suitable for inclusion into our database. If accepted the supplied Images will be stored on our web site and any other medium we may decide on payment of the relevant fee as determined by our then current rates.
   6. 3.6. Damage to products: We will use our reasonable endeavors not to cause any damage to your products, but we will not be liable for any damage so caused.
4. 4. TERM
   1. 4.1. This agreement commences on the date we accept your request for access to the web site in the case of membership, or the date you first send us products to photograph in the case of photography, and continues until terminated in accordance with clause 8.
5. 5. FEES
   1. 5.1. Payment: All fees are payable monthly by the 20th day of the month following supply of our services, or yearly in advance in the case of the database membership fee.
6. 6. WARRANTIES AND EXCLUSIONS
   1. 6.1. Our Warranty: We warrant that:
      • the Space Management Images will be able to be used in currently available versions of Apollo, Spaceman or any major commonly used alternative space management software packages that may be used in New Zealand to enable creation of planograms for in-store merchandising; and
      • the High Resolution Images will be able to be used in all the major commonly used graphic design software packages that may be used in New Zealand to enable creation of pages which will be commercially printed; and
      • we will provide the services described in this agreement with all reasonable care and skill.
   2. 6.2. Your Warranty: You warrant that:
      • all details submitted in the registration form are correct to the best of your knowledge at the time of submitting; and
      • the company or individual whose name appears with your login details is the sole user of the Images downloaded using that login; and
      • you will update your user profile if any of the details contained in the profile change in any material way; and
      • we may photograph the products that you deliver to us without requiring the consent or approval of any third party.
      • we may distribute the Images we create by photographing your products or that are supplied to us by you, in a manner that is consistent with our normal business practices, to any registered user of our web site.
   3. 6.3. Claims: If you have a claim under clause 6.1 you must provide us with written details of that claim within 20 working days of discovery of the defect, and must provide us with a reasonable opportunity to investigate the claim. We must then promptly take such action as is necessary to comply with clause 6.1, at no extra charge. We will incur no liability in respect of the defect except as set out in this clause. If you do not comply with this clause 6.3, you will be deemed to have accepted the services and we will not incur any liability whatsoever to you.
   4. 6.4. No Other Warranty: Subject to clause 6.1, no warranty or condition will be implied against us by any statute, at common law, or otherwise, no representation, condition or warranty will bind us unless it is in writing and signed by us, and we have no liability or responsibility for any direct, indirect or consequential injury, loss or damage whatsoever or howsoever arising (whether in contract, tort, equity or otherwise). Without limiting the above, the quality, size and resolution of the Images in the database is at our sole discretion, and we make no representation that the Images will be suitable for any purposes other than those described in clause 6.1.
   5. 6.5. Indemnity: You indemnify us against any direct, indirect or consequential injury, loss or damage that we may suffer as a result of a breach by you of this agreement.
   6. 6.6. Limitation of Liability: Without limiting the limitations of liability contained elsewhere in this agreement, our liability under this agreement is limited to the fee for the service in respect of which such liability arises. We will have no further liability or responsibility for any direct, indirect or consequential injury, loss or damage whatsoever and howsoever arising.
7. 7. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
   1. 7.1. Confidential Information: Neither party will without the other’s prior written consent use, copy or disclose to any third party, or cause or permit to be used, copied or disclosed to any third party, any Images, or any information or Images created using the Images, other than as provided in these terms.
8. 8. DEFAULT AND TERMINATION
   1. 8.1. Late Payment: If you fail to pay any amount payable under this agreement on the due date, we may, without prejudice to our other rights, require you to compensate us by making payment to us on demand of interest (as liquidated damages) on the amount due from the due date until the date of payment, at a rate equal to 5% above the current overdraft rate (in addition to you remaining liable for the full amount outstanding).
   2. 8.2.Termination on default: This agreement may be terminated immediately by either party ("the first party") giving notice in writing to the other party ("the other party") if:
      • the other party commits any breach of this agreement that is incapable of being rectified, or that is not rectified within 30 days of written notice of the breach having been given to the other party by the first party; or
      • the other party becomes insolvent, or a receiver or manager of any asset of the other party is appointed, or an order made or resolution passed for the liquidation of the other party.
   3. 8.3. Termination on notice: This agreement may be terminated by either party giving one month’s written notice.
   4. 8.4. Costs: You must pay all costs and expenses incurred by us (including costs on a solicitor/client basis) in enforcing our rights under this agreement.
9. 9. CONSEQUENCES OF TERMINATION
   1. 9.1. Accrued Rights: Termination of this agreement will be without prejudice to any rights or obligations accrued as at the date of termination or expiry. On termination of this agreement clauses 5, 6, 7, 8, and all other provisions of this agreement that are intended to do so will continue in full force and effect.
   2. 9.2. Action on Termination: On termination of this agreement:
      • you must pay us all amounts payable immediately (whether or not they have fallen due for payment);
      • we may continue to store the Images in our database, and allow other database members access to them;
      • you must immediately cease to use any Images other than the Images of your own products, and must remove the Images from your computer and storage systems.
10. 10. GENERAL
    1. 10.1. No Assignment: We may but you must not assign any rights under this agreement. You must not use the Images for the benefit of a third party (including a related company within the meaning of the Companies Act 1993) without our prior written consent, which may be given or withheld in our absolute discretion. We may subcontract the performance of any of our obligations under this agreement to a third party, but will not thereby be relieved of any liability under this agreement.
    2. 10.2. Entire Agreement: These terms and conditions contain all of the terms, representations and warranties made between the parties and supersede all prior discussions and agreements covering the subject matter of this agreement. Except as specifically provided, no amendment to this agreement will be effective unless it is in writing and signed by both parties.
    3. 10.3. Waiver and Third Parties: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it. Where this agreement confers a benefit upon any third party, the parties do not intend to create an obligation enforceable under the Contracts (Privity) Act 1982 by that third party.
    4. 10.4. Force majeure: We may suspend our obligations to perform this agreement if we are unable to do so as a direct result of any circumstance beyond our reasonable control ("Force Majeure Circumstance"). Any such suspension of performance must be limited to the period during which the Force Majeure Circumstance continues.
    5. 10.5. Alternative Dispute Resolution: Where any dispute or difference arises between the parties, that dispute or difference will be referred to the mediation of a mediator to be agreed by the parties, with such mediation to be conducted in accordance with the rules laid down by LEADR New Zealand Incorporated. Nothing in this clause will prevent either party from seeking urgent interlocutory relief from the courts.
    6. 10.6. Acceptance of terms and conditions: You are deemed to have agreed to be bound by these terms and conditions by filling out the registration form requesting a login and password and forwarding it to us, or by submitting products to be photographed, or by submitting Images to be included in our database, and we are deemed to have agreed to be bound by these terms and conditions by accepting your application, or photographing any of the supplied products, or by loading any of the supplied Images into our database.
    7. 10.7. Governing law: This agreement is governed by New Zealand law.