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Momento Pro Members Terms and Conditions (AU)

 
Current as at 7 Feb 2015


This website (with its affiliated websites, the “Site”) is owned and operated by Momento Pro Pty Ltd ABN 52107433965 (with our licensees and assigns “Momento Pro”, “us”, “we” and “our”).

Momento Pro’s photo product service enables you to upload, preview and order photobooks and other items created by or on your behalf using our services (together, “Products”) subject to the following terms and conditions.

Momento Pro reserves the right to amend these terms and conditions from time to time without notice to you (though changes to our terms and conditions will from time to time be noted in our newsletter). Such amendments will be effective immediately on posting of the modified terms and conditions on www.momentopro.com.au (the "Site"). You should therefore carefully read through these terms and conditions on each occasion that you access and use the Site. By completing the membership application form, you expressly agree to be bound by these terms and conditions, the Momento Pro Members Terms & Conditions and the Momento Pro Website User Terms and Conditions (collectively the "Terms").

By checking the Terms and Conditions box on the Reseller Application webpage, you expressly agree to be bound by the Terms.
IF YOU DO NOT WISH TO BE BOUND BY THE TERMS, YOU MUST NOTIFY MOMENTO PRO IN WRITING AND CEASE YOUR SERVICE REQUEST IMMEDIATELY.

  1. MEMBERSHIP INFORMATION
    1. When applying to become a Reseller Member of Momento Pro, or when updating your Member Profile, you must provide Momento Pro with accurate and complete details.
    2. It is your responsibility to inform Momento Pro of any changes to your membership information.
  2. USERNAME AND PASSWORD
    1. You must ensure that your username and password remain confidential at all times. You are entirely responsible for all activities that occur under your username and password, including unauthorised use of your user name and password. You must notify Momento Pro immediately if you become aware of any unauthorised use of your username and password.
  3. YOUR OBLIGATIONS
    1. You must order a minimum number of Products from us in any 12 month period as defined by your membership category and the Momento Pro Reseller pricing table as advertised on the Site.
    2. Momento Pro will retrospectively assess the number of your purchases. If you fail to comply with clause 3.1, Momento Pro may reassign you to a different membership category or immediately terminate this agreement by notice in writing by email to you.
    3. You must deliver your Product file (the "File") ready for printing to Momento Pro by:
      1. uploading the Master File or PDF to the Site using the upload facility accessible after logging in at the Site; or
      2. mailing the Master File or PDF on CD-R or DVD-R to Momento Pro at the address noted at the Site.
    4. You warrant that:
      1. the File you submit to Momento Pro:
        1. does not contain any virus or other destructive program of any kind;
        2. does not infringe any third party rights (including copyright or any other intellectual property rights); and
        3. is not defamatory, obscene or otherwise contrary to law;
      2. you have thoroughly proofed all images and text in the File and can confirm that the File is error-free and ready for printing; and
      3. any File submitted is provided according to our specification requirements.
  4. SERVICE DIRECTORY LISTING & CUSTOMER SERVICE
    1. If you agree to be listed in the Momento Services Directory (the "Directory"), you agree to:
      1. grant us a nonexclusive, royalty free licence to publish the data provided in Your Services Directory Listing in the Directory for marketing purposes
      2. communicate with and/or provide services to Momento customers who contact you via your Directory Listing in professional and ethical manner;
      3. warrant that you accept all responsibility and liability for the resulting arrangements, and that Momento is not responsible or liable in any way.
    2. You acknowledge that Momento provides the Directory for your convenience only and is not responsible or liable for any work undertaken by the Directory members.
  5. OBLIGATIONS OF MOMENTO PRO
    1. On submission of your application we will review your application and confirm your Momento Pro Reseller membership in writing, by email, within 7 days.
    2. Should your application be accepted we will:
      1. confirm your Reseller Membership category and discount percentage on RRP;
      2. reassess your Membership category annually; and
      3. activate your access to the private Member's Area of the Momento Pro website.
    3. On receipt of your Files, we will:
      1. create and publish a free online, animated replica of your Product flipbook on the Site ("Flipbook");
      2. allow you to view your Flipbook;
      3. allow you to copy and use the Flipbook 's HTML code for publishing on your website
      4. allow you to invite guests to view your Flipbook at the Site ("Selected Guests"); and
      5. allow you to order copies of your File as a printed Product (the "Product") via the Site.
    4. If you wish to invite a Selected Guest to view your Flipbook and purchase, we will allow you to send an email to your Selected Guest which will include a link to a private web page where your Selected Guest can preview and purchase a copy of your Product.
    5. We agree to print the Product(s) you order as high quality digital prints using a digital printing process not a photographic printing process.
    6. Momento Pro offers no guarantee for the accuracy of print colour but does implement an ICC colour managed workflow in place to optimise the Product prints, and can better produce best print results for Products created using a professionally profiled monitor.
    7. Your File will remain on the Site for at least 90 days. Subject to clause 12.3, your File will remain available on the Site indefinitely if, within that 90 day period, you order physical copies of your File from us. However, if you do not order any physical copies of your File from us, we may permanently delete that File at any time following that 90 day period.
  6. PURCHASE OF PHOTOBOOKS AND RESELLER PRICES
    1. You must pay Momento Pro for the Product(s) you order and any delivery costs in accordance with the Momento Pro Reseller price list advertised at the Site (as amended from time to time).
    2. Momento Pro will provide you with an electronic copy of its invoice at the time you order. You should print a copy of the invoice for your records.
    3. Except as otherwise agreed in writing or provided in the Terms, you must pay the amount of the invoice to Momento Pro at the time you order your Product(s) from Momento Pro.
    4. Momento Pro's Reseller price list does not include any insurance of the Product(s) from the time they are dispatched from our premises. You shall be liable to pay all delivery charges as invoiced.
    5. We will not refund any money paid by you to Momento Pro if you cancel an order after you have submitted and paid for the order.
  7. PASSING OF RISK AND TITLE IN PHOTOBOOK(S)
    1. All risk in physical copies of the Product(s) you order will pass to you immediately upon dispatch from our premises.
    2. We will retain title to physical copies of the Product(s) you order until we have received full payment from you for the Product(s).
  8. DELIVERY AND INSPECTION
    1. We will use our best endeavours to arrange for the delivery of the Product(s) specified in your order within a reasonable time of receipt of such order given stock levels, transport availability and other relevant factors, but in no event will we be liable to you for delay of any kind whatsoever in complying with or meeting such order, irrespective of whether such delay is incurred or suffered as a result of any cause or circumstance whatsoever.
    2. We shall not be liable to you for any inability to fulfil all or part of any order placed by you from time to time. We will advise you as soon as reasonably possible as to orders which cannot be fulfilled.
    3. No claims for damaged or defective Product(s) may be made against us unless written notice of such claim is received by us within 7 days after the delivery of the Product(s) to you.
    4. If you fail to advise us of any damage to the Product(s) within 7 days after delivery, you shall be taken to have accepted the Product(s) and the Product(s) will be deemed to conform with the Terms.
    5. The Momento Pro Product service is only available in Australia. Deliveries are made to Australian addresses only.
  9. LIMITED WARRANTY
    1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL CONDITIONS, WARRANTIES, STATEMENTS, ASSURANCES AND REPRESENTATIONS IN RELATION TO MOMENTO PRO'S SERVICES AND PRODUCTS ARE EXPRESSLY EXCLUDED.
    2. PLEASE BE SURE TO PREVIEW YOUR PRODUCT(S) CAREFULLY BEFORE PLACING YOUR ORDER. IMAGES AND TEXT WILL BE PRINTED AS THEY APPEAR IN THE PREVIEW.
    3. IN THE EVENT OF LOSS, DAMAGE OR MISHANDLING OF YOUR IMAGES OR PHOTOGRAPHS BY MOMENTO PRO FOR ANY REASON WHATSOEVER OR IF MISUSE OF YOUR IMAGES OR PHOTOGRAPHS IS MADE BY A THIRD PARTY OR IF YOU CLAIM THAT THERE HAS BEEN A BREACH OF A CONDITION OR WARRANTY WHICH CANNOT BE EXCLUDED BY LAW OR THE TERMS, MOMENTO PRO'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT MOMENTO PRO'S OPTION, TO EITHER:
      1. RETURN THE PRICE YOU PAID; OR
      2. REPAIR OR REPLACE THE PRODUCT IF IT IS RETURNED TO MOMENTO PRO WITH A COPY OF YOUR INVOICE.
    4. WE ASSUME NO LIABILITY FOR POOR IMAGE QUALITY DERIVED FROM LOW-RESOLUTION IMAGES, MISUSE, MISHANDLING OR INADEQUATE MAINTENANCE OF THE PRODUCT(S), THE LONGEVITY OF THE PAPER IN ANY PAPER-BASED PRODUCT(S) OR MISSPELLINGS IN TEXT IN THE PRODUCT(S). WE WILL NOT IN ANY CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS OR LOSS OF PROFIT OR REVENUE OR LOSS OF OPPORTUNITY) FOR ANY BREACH OF ANY WARRANTY OR OTHER BREACH OF THESE TERMS.
    5. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY EXCLUDE ALL LIABILITY TO YOU WITH RESPECT TO THE SALE OR USE OF THE PRODUCT(S) FOR LOSS OF PROFITS OR FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INDIRECT LOSS OR DAMAGE OF ANY KIND ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OF PROFITS OR DAMAGES, AND IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE PRICE OF THE PRODUCT(S) SOLD TO YOU UNDER THE TERMS.
    6. YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS AND EXCEPT AS EXPRESSLY STATED IN THE TERMS, NO WARRANTY, ASSURANCE, PROMISE OR REPRESENTATION HAS BEEN MADE REGARDING THE QUALITY, FITNESS OF USE, SUITABILITY OR MERCHANTABILITY OF THE PRODUCT(S) OR REGARDING ANY OTHER MATTER OR THING WHATSOEVER. YOU AGREE THAT YOU HAVE RELIED ON YOUR OWN KNOWLEDGE, SKILL AND JUDGMENT IN ENTERING INTO THE TERMS.
  10. INTELLECTUAL PROPERTY
Images and photographs submitted by you
  1. Momento Pro does not claim any ownership rights in any images or photographs submitted to Momento Pro. You warrant that you are the owner of copyright or have the express authorisation of the owner of copyright in the text, images and photographs that you submit to Momento Pro.
  2. Momento Pro will not accept any liability for breaches by you of the copyright of any other party. You indemnify Momento Pro for all costs and damages that Momento Pro may suffer arising from any allegation that Momento Pro is liable for any infringement of copyright arising from Momento Pro's use, transmission, publication or sale of the text, images or photographs submitted by you to Momento Pro, to your Selected Guests.
  3. You are solely responsible for complying with all relevant copyright laws that apply to you and your conduct. You acknowledge that you are aware that a breach of such laws may have serious consequences for you including both civil and criminal liability.
Content of the Site
  1. Unless provided otherwise in these terms and conditions, all copyright subsisting in all information, text, material, graphics and other material on the Site ("Content") is owned by Momento Pro unless expressly indicated otherwise.
  2. You must not modify, copy, reproduce, communicate to the public, transmit or distribute the Content in any way except as expressly provided by Momento Pro.
  3. All trade marks displayed on the Site are owned by Momento Pro, unless expressly indicated otherwise.
Licensed Content
  1. As a result of licence agreements entered into by Momento Pro, content in which third parties own intellectual property rights (including copyright and trade marks) may be available to you on the Site to use in Products (“Licensed Content”). Relevant third parties retain all rights in Licensed Content, and you agree not to use Licensed Content except as specifically permitted by the Members Terms and Conditions.
  2. For clarity:
    1. any Product created through the Site that includes Licensed Content is intended solely for personal, non-commercial use within Australia and New Zealand and hence such Products may not be sold or submitted to Momento Pro by Reseller Members for sale or commercial distribution.
  3. IMAGES, PHOTOGRAPHS AND CONTENT NOT PERMITTED ON THE SITE
    1. Momento Pro reserves the right at its sole and absolute discretion to refuse to reproduce, modify, adapt, alter or transmit any text, images, photographs or other material submitted by you to Momento Pro.
    2. Without limiting the above paragraph in any way, Momento Pro reserves the right to refuse to transmit, publish or sell any Product that is created or submitted by you in breach of the Terms or that Momento Pro considers objectionable or contrary to any law.
    3. You must not use the Site in any manner or for any purpose that is unlawful or in any manner that violates any right of Momento Pro or which is prohibited by the Terms.
  4. TERMINATION
    1. We may terminate this agreement and your membership immediately by giving you notice in writing via email.
    2. You may terminate this agreement and your membership by giving 3 months notice in writing to Momento Pro via email.
    3. On termination, we will remove:
      1. the Files and all other material submitted by you to Momento Pro from the Site; and
      2. your name from the Directory.
    4. We are not responsible for any loss of data on termination resulting from the removal of, or deletion of, the File or any other material submitted by you to Momento Pro.
  5. GENERAL PROVISIONS
    1. This agreement is governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of any competent court within the State of New South Wales.
    2. No waiver by either party of any term or condition of this agreement will, in any instance, constitute or be deemed to constitute a waiver of any such term or condition in the future or of any subsequent breach thereof.
    3. Nothing in this agreement shall constitute a partnership or joint venture between you and Momento Pro.
    4. If any term or part of this agreement is declared to be unenforceable or void by a court of competent jurisdiction for any reason whatsoever, such provisions as are not found to be unenforceable or void will remain in effect.