Website & Licence Terms
INTRODUCTION
If You use, or download an image (Image) from, the Lonely Planet Images website (Website) You agree that the following terms and conditions form an agreement (Agreement) between Us and You.
.WEBSITE TERMS OF USE
1. These terms and conditions may change from time to time without notice. You should check these terms and conditions regularly.
Ownership
2. We operate the Website and either own, or are licensed to use, all of the content, including graphics, images, film, sound, illustrations, software and trade marks, used on the Website (Content).
3. Other than as allowed for comping, You must not copy or transmit Content or an element of the Website. Your use of the Website does not grant You any rights in the Website or the Content.
Comping Licensing terms
4. You may download an Image from the Website on a non-exclusive basis for the purposes of reproducing the Image for personal, non-commercial use or for test or sample purposes (Comping Licence).
5. Unless you licence the Image on a rights-managed basis on the terms below, You must not use the Image for any other purpose.
Privacy
6. If You register to download Images from the Website, We will collect personal information about You and We will handle Your personal information in accordance with Our Privacy Policy.
Disclaimer
7. We will use all reasonable efforts to ensure the accuracy, correctness and reliability of the Website and the Content but We do not represent that the Website or the Content will be error free, accurate or suitable for any use.
8. Except as set out below, We provide the Website and the Content "as is" and exclude, to the maximum extent permitted by law, all warranties in relation to the Website and the Content.
9. Except as set out below, We and Our related companies, employees and other representatives will not be liable, to the maximum extent permitted by law, for any loss or damages (including consequential loss) incurred by You in any way related to the Website or the Content even if You have notified Us of the possibility of such damages.
RIGHTS-MANAGED LICENSING TERMS
Introduction
10. Before you register to download or use an Image for a use not covered by the Comping Licence, you must read these terms (Rights-Managed Licence) and indicate Your acceptance by ticking "I Accept". The Rights-Managed Licence will apply to all Images provided to You from the Website. If You do not agree to be bound by these terms please contact your local Lonely Planet Images office.
11. By ticking "I Accept", the user warrants that:
(1) they are at least 18 years old; and
(2) if they are entering into this Agreement on Your behalf, that:
(a) they are authorised by You to enter into this Agreement; and
(b) they will use the Image solely for Your benefit.
Licence
12. Your right to download or use an Image is conditional on Your compliance with the terms of this Agreement and Us receiving full payment of any fees specified in the electronic invoice provided after You have completed Your order (Invoice). Your rights in the Image are limited to the rights expressly granted in this Agreement and We reserve all other rights.
13. You may download or use an Image solely for the purpose specified in the Invoice.
14. Your rights of exclusivity in the Image, if any, will be specified in the Invoice.
Licence Fee
15. You must pay the fee specified in the Invoice for the licence to reproduce the Image (Licence Fee), together with any applicable taxes, either at the time of downloading the Image, or in accordance with the payment terms specified in the Invoice. If You do not include the photographer and image library credit specified below with each use of the Image, We may increase the Licence Fee by up to 100%.
Subscription
16. If the Invoice provides that You may access a number of Images on an ongoing basis (Subscription), the terms of access (including the maximum number of images, period of access, licence term and scope of use for each Image, fees and record keeping requirements) will be confirmed in writing between You and Us. The Rights-Managed Licence terms will apply to all Images accessed under the Subscription.
GENERAL LICENSING TERMS
Introduction
17. The general licensing terms below apply to all Images downloaded or used under the Comping Licence, Rights-Managed Licence or a Subscription.
Use of Images
18. You must:
(1) promptly inform Us of any claim of legal liability concerning the use of Image;
(2) unless the Image has been licensed for commercial use or has otherwise been agreed between the parties, include a credit next to each Image in the form of "[Photographer name]/Lonely Planet Images" or such other credit as specified in the Invoice; and
(3) provide Us with two copies of any print or digital publication, document or other product in which the Image is included, or a hyperlink to the website incorporating the Image, before publication (or as soon as reasonably practical after publication).
19. You must immediately withdraw the Images from publication if We notify You in writing that a particular Image is no longer available for use, including on the grounds of potential illegality or legal liability. We will, in Our discretion, provide You with a replacement Image or refund the Licence Fee on a pro-rata basis. You are not required to destroy or withdraw from circulation any printed publications or other tangible products in existence at the time We require an Image to be withdrawn.
Restrictions on use of Images
20. You must not:
(1) use the Image in any pornographic, defamatory, obscene or otherwise illegal manner;
(2) use the Image in a logo, trade mark or service mark;
(3) use the Image featuring a model or property:
(a) in connection with a subject that could reasonably be considered to be unflattering or sensitive (for example, AIDS, sexually transmitted diseases, contraception, substance abuse and physical or mental ailments); or
(b) in a manner that represents the use or endorsement of a product or service by the model or property,
unless You obtain Our prior written consent;
(4) make the Image available for downloading separately or in a format designed or intended for permanent storage or re-use by website users;
(5) modify the Image, except for colour correction, removal of minor imperfections and moderate cropping unless You obtain Our prior written consent;
(6) sub-licence, re-sell or otherwise distribute the Image separately or detached from a product or web page; or
(7) use Our trade marks, except as provided in this Agreement, unless You obtain Our prior written permission.
Storage of Images
21. If the Invoice states that You are permitted to duplicate, scan or electronically retain an Image, You must:
(1) only use or retain a single copy of an Image on Your local computer network and not otherwise make, use or distribute copies of the Image for any purpose;
(2) retain any identification number and copyright information included with the Image;
(3) use Your best endeavours to protect the Image from unauthorised access and use; and
(4) unless We otherwise agree, delete the Image from all electronic and removable media and destroy any other copies of the Image within 60 days from the date on which the Image is downloaded other than 1 copy for archival purposes of the finished product in which the Image is incorporated.
Provision of transparencies
22. You will be liable for any loss or damage to any original transparencies of Images that We supply to You. You agree to pay Us USD$1,500 for each transparency that is lost or damaged.
Infringement of intellectual property rights
23. You must notify Us if You become aware, or suspect, that any third party has gained access to the Image through You. You must provide Us with reasonable assistance We require to prevent the infringement of any intellectual property rights in the Image that arises out of a third party gaining access to the Image through You.
Releases
24. Unless We specifically state on the Website or in the Invoice that We have secured a release or licence from any third party in respect of a particular Image, We do not make any representation or warranty with respect to the use of names, likenesses, trademarks, logos, uniforms, buildings, signs, registered or copyrighted designs, or works of art depicted in the Image.
25. You must ensure that all necessary rights, consents, licences or permissions that may be required are obtained prior to publication, reproduction or other use of the Image. You indemnify Us against any liability, damage, cost or expense arising out of or in connection with any failure on Your part to obtain any necessary rights, consents, licences or permissions.
Warranties
26. We warrant that:
(1) the Images will be free from defects in material or workmanship for a period of 30 days; and
(2) subject to paragraphs 24 and 25 and Your usage obligations under this Agreement, the Image will not infringe the intellectual property rights of a third party.
27. Other than the warranties in paragraph 26, You acknowledge that the Images are supplied "as is" and that You have not relied on any other representation as to the Image's merchantability, or suitability for any particular purpose. To the maximum extent permitted by law, all terms and warranties expressed or implied by any legislation, the common law, equity, trade, custom or usage or otherwise in relation to the licence of the Image are expressly excluded.
Limitation of Liability and Indemnities
28. Subject to paragraphs 29 and 30 and to the maximum extent permitted by law, We will not be liable to You in any way for loss or damages of any kind, including (without limitation) any consequential, special, indirect or direct damages, loss of data, loss of revenue or loss of profits in any way connected with or arising out of this Agreement, even if We have been informed of the possibility of such damages.
29. Subject to paragraph 30, Your only remedy if We breach any of Our warranties is for Us at Our option, to replace the Image or refund the Licence Fee on a pro-rata basis.
30. We indemnify You against all losses, liabilities and costs (including legal costs on a full indemnity basis) incurred by You arising directly out of a claim by a third party relating to a breach of the warranty in paragraph 26(2), up to a maximum of the Licence Fee paid for the relevant Image.
31. You are liable for, and indemnify Us against, all losses, liabilities and costs (including legal costs on a full indemnity basis) incurred by Us arising directly or indirectly as a result of or in connection with a claim by a third party relating to a breach of this Agreement by You.
Termination
32. If You download but do not use an Image and You notify Us that You wish to cancel the order within 30 days of downloading the Image, We will refund you 50% of the Licence Fee for that Image.
33. If You breach any of Your obligations under this Agreement and fail to rectify the breach in the manner, and within the timeframe, We request, this Agreement, or at our election the licence for the Image, will automatically terminate.
34. On termination of this Agreement, or the licence for an Image, for any reason:
(1) all rights granted to You will automatically revert to Us;
(2) You must immediately cease any use of the Image and must delete the Image and all copies of it from all media and destroy all other copies of the Image except for copies of tangible products in existence at the time of termination and 1 copy kept for archival purposes in accordance with paragraph 21(4); and
(3) You must immediately return to Us any original transparencies provided to You.
Dispute Resolution
35. If a dispute between Us and You cannot be resolved between the parties the dispute must be referred to mediation. Unless otherwise agreed, the mediation will take place in Melbourne, Australia and the mediator will be appointed by the Institute of Arbitrators & Mediators Australia. This paragraph 35 does not prevent Us from seeking preliminary or permanent injunctive relief.
GENERAL
36. You may not assign, licence or transfer any rights granted to You or any of Your obligations under this Agreement unless You obtain Our prior written permission. We may transfer all or any part of Our rights, interests, obligations or liabilities under this Agreement by assignment or novation.
37. If any provision of this Agreement is held to be unenforceable, that provision will be deleted only to the extent necessary, and the other provisions of this Agreement will remain in full force and effect.
38. No failure to exercise or any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting the waiver unless it is made in writing.
39. This Agreement contains the entire agreement between the parties relating to Your use of the Image and supersedes any previous agreement concerning use of the Image between the parties, including any oral agreement.
40. This Agreement will be interpreted, construed and governed by or in accordance with the law of the State of Victoria, Australia. You submit to the non-exclusive jurisdiction of courts exercising jurisdiction there, in connection with matters concerning this Agreement.
41. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
42. We, Us and Our means:
(1) Lonely Planet Publications, Inc. of 150 Linden Street, Oakland, California, 94607, United States if You are resident in North America, South America, Central America, Caribbean (excluding Cuba), Micronesia including Guam, Johnston Island, Marshall Islands, Northern Mariana Islands and Palau (excluding Kiribati, Federal States of Micronesia, Nauru) and American Samoa;
(2) Lonely Planet Publications Ltd (3970494) of 2nd Floor, 186 City Road, London EC1V 2NT, United Kingdom if You are resident in the United Kingdom, Ireland, Europe, Russia and Caucasus; or
(3) Lonely Planet Publications Pty Ltd (ACN 005 607 983) of 90 Maribyrnong Street, Footscray, Victoria, Australia 3011 if You are resident in any other part of the world.
43. You means the person or company nominated in the registration section of the Website (including its directors, employees, officers, contractors, agents, principals, related bodies corporate and affiliates). If You are acting as an agent (including if You are an advertising agency), "You" also includes the end client specified in the Invoice. If You are not registered to download Images, You means the individual using the Website.