End User Licence Agreement for Content Providers


1. Background


iMAGECLOUD Media Pty Ltd ACN 162 752 507 ("Us" or "Imagecloud") provides certain hosting and content services for photographers, videographers, copywriters, designers and other content providers ("You" or "Content Provider"), to help you connect and engage with:


real estate agents and property agents ("Clients"); and


suppliers of other services such as retouching and portfolio management services ("Suppliers").


This is a legal contract between you and Imagecloud, setting out the terms that govern your participation and interaction with the Imagecloud website and services.


2. Your Relationship with Imagecloud


(a) You understand and agree that by becoming a Content Provider, no legal partnership or agency relationship is created between you and Imagecloud. Neither you nor Imagecloud is a partner, an agent or has any authority to bind the other. You agree not to represent otherwise.


(b) You also certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to become a Content Provider. This Agreement is void where prohibited by law and the right to become a Content Provider is not granted in such jurisdictions.


(c) Unless otherwise agreed or permitted by Imagecloud in writing, you cannot share or transfer any benefits you receive from Imagecloud in connection with being an Imagecloud Content Provider. The Account ID, User ID and password you use to login as a Content Provider cannot be shared in any way or with any one. You are responsible for maintaining the confidentiality of your Account ID, User ID and password and for any activity in connection with your account.


(d) Notwithstanding the foregoing restrictions in this Section 2, should you wish to grant access to your Account ID to any agent or employee, you may setup a User ID and password linked to your Account ID for each individual. This is done entirely at your own risk and all such Users must act in accordance with this Agreement. You are responsible for such individuals"™ compliance with and violations of this Agreement and any other Imagecloud agreements.


3. What We Offer You


(a) As a Content Provider, Imagecloud may offer to provide you with certain services ("Services"), as described more fully herein and on the Imagecloud web pages ("Site") and certain software that has been created by Imagecloud or a third party ("Software"), that you can use in connection with your participation as a Content Provider.


(b) Imagecloud may change, suspend or discontinue providing the Services, Site or Software to you at any time, and may impose limits on certain features offered or restrict your access to part or all of the Site without notice or liability.


4. Intellectual Property


(a) Nothing in this Agreement affects the ownership of intellectual property rights created by You. You retain ownership of all of your intellectual property rights in photographs, videos or any other content that you upload ("Material").


(b) For Material you upload, you hereby grant Imagecloud, its related bodies corporate, affiliates and our partners a worldwide, irrevocable, non-exclusive licence to reproduce, promote, publicly perform, display, publish, distribute adapt and modify the Material, and to sub-license any of these rights, for the following purposes:


(i) to supply the Services to you (including but not limited to supplying the Material to Clients); and


(ii) to promote the Services, Site or Software.


(c) All current and future intellectual property rights owned by Imagecloud, including but not limited to intellectual property rights in the Services, Site and Software, are owned by Imagecloud, and no other rights or licences are granted or to be implied under any Imagecloud intellectual property rights.


5. Material you Upload to Imagecloud


(a) The Content Provider warrants that Material uploaded by you to the Imagecloud website:


(i) does not infringe the intellectual property rights or any other rights of any person;


(ii) to the extend the Material contains images of video footage of people, you represent that you have obtained necessary and valid releases so that the Material can be used by you, Imagecloud or a Client, as required;


(iii) the Material and each of the rights associated with the Material is not the subject of any claim, demand, action or legal proceeding or to Your knowledge any potential or pending claim, demand, action or proceeding;


(iv) the Material does not contain anything that is offensive, defamatory, violent, sexually explicit and/or exploitative;


(v) the Material is not misleading or deceptive, or capable of misleading or deceiving;


(vi) where the Material is software or source code, it does not contain any viruses or malware;


(b) the Content Provider is solely responsible for any third party royalties payable in respect of the exploitation of the Material


(c) Imagecloud reserves the right to remove any Material uploaded that does not conform to the above.


6. Objectionable Material


You understand that by using the Service, you may encounter Material that you deem to be offensive, indecent, or objectionable, and that such Material may or may not be identified as having explicit material. Nevertheless, you agree to use the Service at your sole risk and Imagecloud shall have no liability to you for material that may be found to be offensive, indecent, or objectionable.


7. Restrictions


(a) Copyright and other intellectual property laws protect the Services, Site and Software, and you agree to abide by and maintain all notices, license information, and restrictions contained therein.


(b) Unless expressly permitted herein or otherwise permitted in a separate agreement with Imagecloud, you may not modify, publish, network, rent, lease, loan, transmit, sell, participate in the transfer or sale of, reproduce, create derivative works based on, redistribute, perform, display, or in any way exploit any of the Services, Site or Software in whole or in part.


(c) You may not decompile, reverse engineer, disassemble, attempt to derive the source code of any software or security components of the Services, Site, or Software (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by any licensing terms accompanying the foregoing).


8. Support


You will be solely responsible for support and maintenance of your Material and to address any complaints about your Material or your services. You agree to provide customer support in a timely and professional manner.


9. Fair Use Policy


(a) Services may be provided to you for uploading, storing and managing your Material. While no specific limits are applied to the number or size of the items uploaded or stored, Imagecloud reserves the right to apply limits at any time where in the sole discretion of Imagecloud the number or size of the items uploaded or stored or the volume of notifications sent are deemed to be unfair.


(b) In the event that a limit is applied, you would be required to reduce the number or size of the items uploaded or stored or the volume of notifications sent to the applied limit.


10. Fees we Charge


(a) The Services you chose to subscribe to on the Site determine the applicable fees and charges that will be levied, and due and payable by You.


(b) The Content Provider pages on the Site will provide you with a list of the Services and related fees and charges as updated from time to time as defined in this Agreement. Collection of payment from you will be made at the time of invoicing the fees and charges to you using the payment method that you select.


11. Payments we Make to You


(a) Where applicable, payments due to you for sales of your services made through the Site will be made within in fourteen days of the sale funds being cleared through the Imagecloud bank account. For the purpose of making the payment, Imagecloud will self invoice on your behalf being the cost invoice for Imagecloud and the sales invoice for You. The payment made to you will be net of all applicable discounts and commissions.


(b) A reconciliation of the payment and a copy of the invoice will be emailed to you. Should funds for a sale be reversed out of the Imagecloud bank account for any reason, Imagecloud will in turn forward you a reconciliation of such reversals and will recover the funds paid to you through the payment method.


12. Our Services


Imagecloud offers a range of Services you may wish to subscribe to. Imagecloud reserves the right to change the Services included and fees charged for programs with thirty days (30 days) notice. Such notice will be made by email to the Administration contact listed by You in Your account and will be published in the Content Provider pages on the Site.


13. Payment Method


Payments due by You to Imagecloud can be made by Credit Card via Stripe. You will be required, as a part of the registration process for an Account ID, to provide your Credit Card details. The Imagecloud systems will automatically collect the funds from the selected Payment Method and You hereby consent to Imagecloud collecting the due amounts. For Payments due by Imagecloud to You, Stripe will be used as the Payment Method. You are required to maintain a current Credit Card for this purpose. All Payment terms are strictly 7 days from the issue of the invoice.


14. Taxation


(a) All amounts payable or other consideration provided in respect of supplies made in relation to this Agreement are exclusive of GST (if any). Where a supply is a taxable supply, all amounts payable or other consideration provided must be increased by the amount of GST payable in relation to the supply.


(b) All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued for the supply). Where any GST payable is not referable to an actual payment, then it must be paid within ten (10) days of a tax invoice being issued by the party making the supply.


(c) Each party is responsible for all taxes or levies imposed on it under applicable laws, regulations and tax treaties as a result of any contract and any payments hereunder.


15. Credit Notes


Should a customer request a credit note for a sale of your Material, made through Imagecloud, this will be agreed with you prior to the credit note being processed. If you have agreed to the credit note, then Imagecloud will in turn forward you a reconciliation of such credit notes and will recover the funds paid to you through the payment method.


16. Confidential Information


(a) You agree that all confidential information including, but without limiting the general nature and extent of this undertaking, relating to the technology, know-how, trade secrets, plans, methods of marketing, sales leads, strategic plans, financial information, customer lists and methods of operation of Imagecloud, provided to you directly or as a part of any Service as a Content Provider will be considered and referred to as "Imagecloud Confidential Information".


(i) Notwithstanding the foregoing, Imagecloud Confidential Information will not include:


(ii) information that is generally and legitimately available to the public through no fault or breach of yours;


(iii) information that is generally made available to the public by Imagecloud;


(iv) information that is independently developed by you without the use of any Imagecloud Confidential Information;


(v) information that was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation; or


(b) any third party software and/or documentation provided to you by Imagecloud and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation.


(c) Unless otherwise expressly agreed or permitted in writing by Imagecloud or as required by law, you agree not to disclose, publish, or disseminate any Imagecloud Confidential Information to anyone other than to employees and contractors working for the same entity as you and then only to the extent that Imagecloud does not otherwise prohibit such disclosure.


(d) Except for your authorized purposes as a Content Provider or as otherwise expressly agreed or permitted by Imagecloud in writing, you agree not to use Imagecloud Confidential Information in any way, including, without limitation, for your own or any third party"™s benefit without the prior written approval of an authorized representative of Imagecloud in each instance. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Imagecloud Confidential Information.


(e) You acknowledge that unauthorized disclosure or use of Imagecloud Confidential Information could cause irreparable harm and significant injury to Imagecloud that may be difficult to ascertain. Accordingly, you agree that Imagecloud will have the right to seek immediate injunctive relief to enforce your obligations under this Agreement in addition to any other rights and remedies it may have.


17. Occupational Health and Safety and Workplace Health and Safety


(a) If your services are to be performed on a Client's property, you acknowledge and agree that you are providing the services directly to the Client and that Imagecloud is not a party to your relationship with the Client. Accordingly, Imagecloud has no responsibility for your health or safety at any time.


(i) It is your responsibility to ensure that:


(ii) you are authorised to occupy and have access to the Client"™s premises;


(iii) the property is safe and that all facilities provided by the Client for the purposes of enabling your services to be performed are also safe;


(iv) you adhere to all relevant occupational health and safety laws and use safe and proper procedures and practices and that all of your employees or contractors (where applicable) are properly trained and supervised and observe all proper safety practices; and


(v) you have, and your employees and contractors have, where applicable, have current workers compensation insurance.


18. Changes to this Agreement


(a) Imagecloud reserves the right, at its discretion, to modify this Agreement, including any rules and policies at any time.


(b) You will be responsible for reviewing and becoming familiar with any such modifications (including new terms, updates, revisions, supplements, modifications, and additional rules, policies, terms and conditions) ("Additional Terms") communicated to you by Imagecloud.


(c) All Additional Terms are hereby incorporated into this Agreement by this reference and your continued use of the Site will indicate your acceptance of any Additional Terms.


19. Term and Termination


(a) Imagecloud may terminate or suspend you as a Content Provider at any time in Imagecloud"™s sole discretion. If Imagecloud terminates you as a Content Provider, Imagecloud reserves the right to deny your reapplication at any time in Imagecloud"™s sole discretion.


(b) You may terminate your participation as a Content Provider at any time, for any reason, by notifying Imagecloud in writing of your intent to do so. Upon any termination or, at Imagecloud"™s discretion, suspension, all rights and licenses granted to you by Imagecloud will cease, including your right to access the Site, and you agree to destroy any and all Imagecloud Confidential Information that is in your possession or control.

(c) No refund or partial refund of any fees paid hereunder or any other fees will be made for any reason.


(d) Suspension of you account may occur if payment terms are not meet, you will be given sufficient warning via email and reminders prior to suspension, This is an automated process, once payment is received you account will be reinstated.


20. Use Of Trademarks, Logos, etc.


(a) Each party shall own all right, title and interest, including without limitation all intellectual property rights, relating to its Trademarks, Logos, etc. Except to the limited extent expressly provided in this Agreement, neither party grants, nor shall the other party acquire, any right, title or interest (including, without limitation, any implied license) in or to any Trademarks, Logos, etc. of the other party.


(b) Subject to the terms and conditions of this Agreement, You grant to Imagecloud a worldwide, non-exclusive, irrevocable during the term of this Agreement, royalty-free right and license to use, attach, include, reproduce and display Your Trademarks, Logos, etc. in connection with any of Your Material and the marketing of Your Material and the Site.


21. Liability


(a) To the maximum extent permitted by law Imagecloud excludes from this Agreement all conditions and warranties expressed or implied by any legislation, the common law, or otherwise.


(b) Imagecloud acknowledge that legislation may imply into this Agreement certain conditions or warranties and confer on You certain rights and remedies which may not be excluded, modified or restricted. Where permitted by law, Our liability under those non-excludable rights is limited at Our option to:


(i) in the case of goods, the replacement, repair or payment of the cost of replacement or repair of the goods; and


(ii) in the case of services, supplying the services again or payment of the cost of having the services supplied.


(c) To the maximum extent permitted by law, in no event shall Imagecloud or its employees, officers, representatives and directors be liable for any loss of profits, lost time, savings, contracts, revenue, invest, goodwill, data, or penalties, fines, or for consequential, special, indirect, or exemplary damages, costs, expenses, or losses.


(d) To the maximum extent permitted by law, You agree that Imagecloud, its employees, officers, representatives and directors shall not be liable to You for any actions, damages, claims, liabilities, costs, expenses, or losses in any way arising out of or relating to this Agreement (whether that liability arises in contract, tort (including negligence) or statute) which are not otherwise excluded or limited for an aggregate amount in excess of the Relevant Fees paid to Us in the six months prior to the events giving rise to liability.


(e) To the maximum extent permitted by law, Imagecloud make no warranty or representation that the Website will function correctly or at all, be operational and/or free of interruption, delays, faults, computer viruses or other harmful components. For the avoidance of doubt and without limitation You will not be entitled to a refund as a result of any service outages that are caused by maintenance on the servers or the technology.


(f) To the maximum extent permitted by law, Imagecloud are not liable, and accept no responsibility, for use of the Software by any person and are not responsible for the provision of any End User or Reseller support services for the Software.


22. Indemnity


(a) To the extent permitted by applicable law, You agree to indemnify and hold harmless, and upon Imagecloud's request, defend, Imagecloud, its directors, officers, employees, independent contractors and agents (each a "Imagecloud Indemnified Party") from any and all claims, losses, liabilities, damages, taxes, expenses and costs, including without limitation, attorneys"™ fees and court costs (collectively, "Losses"), incurred by a Imagecloud Indemnified Party and arising from or related to your use of the Services, Site or Software and/or Your Material and your services, including but not limited to any of the following:


(i) Your breach of any certification, covenant, obligation, representation or warranty in this Agreement with respect to your Material or your services;


(ii) any claims that your Material or the distribution, sale, offer for sale, use or importation of your Material, violate or infringe any third party intellectual property or proprietary rights;


(iii) Your breach of any of your obligations under an agreement with any Clients or Suppliers


(iv) Breaches by a Client or a Supplier of any of its obligations under any agreement to you; or


(v) Imagecloud"™s permitted use, promotion or delivery of your Material, related trademarks and logos, or images and other materials that You provide to Imagecloud under this Agreement.


(b) You acknowledge that neither the Imagecloud Site nor any Services are intended for use in the development of Material in which errors or inaccuracies in the content, functionality, services, data or information provided by the Material or the failure of the Material, could lead to death, personal injury, or severe physical or environmental damage, and, to the extent permitted by law, You hereby agree to indemnify, defend and hold harmless each Imagecloud Indemnified Party from any Losses incurred by such Imagecloud Indemnified Party by reason of any such use in Your Material. In no event may You enter into any settlement or like agreement with a third party that affects Imagecloud's rights or binds Imagecloud in any way, without the prior written consent of Imagecloud.


23. Third-Party Notices


(a) As a part of the Services provided to Content Providers, material in which Imagecloud does not claim ownership of any intellectual property, will be published by third parties on the Site. The respective third party retains ownership of such material under their own terms and conditions. Nothing on the Site or in this Agreement shall be construed as granting you any intellectual property rights.


(b) Third party Material provided by Imagecloud to you as a Content Provider may be accompanied by its own licensing terms, in which case such licensing terms will govern your use of that particular third party Material.


(c) Mention of third parties and third party products in any materials, advertising, promotions or coupons provided to you as a Content Provider is for informational purposes only and constitutes neither an endorsement nor a recommendation.


(d) All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Imagecloud shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.


24. Governing Law


This Agreement will be governed by and construed in accordance with the laws of the New South Wales, Australia.


25. Miscellaneous


(a) No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Imagecloud, and no single waiver will constitute a continuing or subsequent waiver.


(b) This Agreement will bind your successors but may not be assigned, in whole or part, by you without the written approval of an authorized representative of Imagecloud. Any nonconforming assignment shall be null and void.


(c) If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.


(d) This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings regarding such subject matter.


(e) No addition to or removal or modification of any of the provisions of this Agreement will be binding upon Imagecloud unless made in writing and signed by an authorized representative of Imagecloud.