Legal

MEMBERSHIP AGREEMENT

Terms and Conditions

Dear Visitor

Mychillybin welcomes you to join our community of members, allowing you full access to the Members’ portions of the website located at www.mychillybin.co.nz and similar mychillybin domain names (the "Site"). Where you are acting as agent for more than one client then each client will need to enter into a Membership Agreement (or you may enter into each agreement on their behalf).

The following is a legal agreement between you, your company, your employer and/or your client (collectively "Member") and mychillybin Ltd (“mychillybin”). Please read this Membership agreement carefully before uploading or downloading any mychillybin photographs, information and other material (collectively "Content").

Access and use of the Members’ portions of the Site are provided by mychillybin to the Member on the condition that the Member accepts the terms and conditions of this Membership Agreement (“Membership Agreement”) and by accessing or using the members’ portions of the Site and/or by uploading or downloading any Content, the Member agrees to be bound by the terms of this Membership Agreement.  For the terms and conditions in connection with the use of the Content provided to the Member on the Site, please refer to our Standard Content Licence Agreement, Enhanced Licence Agreement and Exclusive Use Licence Agreement for broader uses of the Content.

The headings in this Membership Agreement are solely for convenience of reference and shall not affect its interpretation.

1. Age and Responsibility

1.1 You represent and warrant that you are 18 or over.

1.2 Where you are entering into this Membership Agreement for a company, employer or client you warrant that you are able to bind that company, employer or client.

1.3 You authorise mychillybin to check your credit card details to verify your identity.

1.4 The Member agrees to be responsible for all of its use of the Site (as well as for use of its Member Name and password(s) by others, including without limitation, minors living with the Member). The Member agrees to supervise all usage by minors of the Site under its name or account.

2. Passwords

A person may access the Site anonymously as a visitor and will not be required to provide personally identifiable information. However in order to access the Member services and Content you will be required to register to become a member of mychillybin.

2.1 The Member warrants:

(a) the information provided by it on the registration form (“Membership Information”) is current, complete and accurate information;

(b) it will maintain and update this Membership Information as required to keep it current, complete and accurate;

(c) that the password selected by and used by the Member in conjunction with the Member Name is to be kept secret and confidential;

(d) the Member will not disclose such password to any other party without the express written permission of mychillybin;

(e) the Member is entirely responsible for any and all activities that occur under or through the use of the Member Name and that mychillybin may rely on any instructions and that all conduct carried out under the Member Name is conduct of the Member; and

(f) to notify mychillybin immediately if it believes it’s password is no longer secret so that mychillybin can cease relying on that password.

Mychillybin has the ability to reset such password(s), however mychillybin does not have the ability to access the password(s) themselves.

3. Duration

This Membership Agreement will remain in force from the registration date unless or until it is terminated as set out below.

4. Intellectual Property

4.1 All materials, including but not limited to, the presentation and organisation of such material, on the Site (the “Materials”) are the property of mychillybin and its licensors and are protected by intellectual property laws including laws relating to trade-marks, trade-names, copyrights, internet domain names and other similar rights.

4.2 The Materials may be used and copied for your own, non-commercial, personal or educational purposes, provided that the Materials are not modified and that copyright and other intellectual property notices are not deleted. The Member may not create derivative works from or otherwise use, copy or exploit the Materials in any way unless they have entered into a separate licence (and then only in accordance with that licence).

4.3 Mychillybin does not own the copyright in any of the photographs uploaded to mychillybin. Without limiting any rights a Member who is an individual and who is not acquiring for business purposes might have under the Consumer Guarantees Act 1993 mychillybin does not warrant that the photographs available from the Site do not infringe the copyright or any rights of a third party.

5. Content Usage

5.1 The Member 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 Content, in whole or in part, except as otherwise expressly permitted in this Membership Agreement and any other agreement entered into at the time such Content is downloaded.

5.2 Members may download Content only in accordance with the terms of this Membership Agreement and the rights granted to a Member under any Standard Content Licence Agreement, Enhanced Licence Agreement and Exclusive Use Licence Agreement agreed to by a Member for that Content.  Our Enhanced Licence Agreement and Exclusive Use Licence Agreement if entered into will give a member greater rights in relation to that Member’s use of Content. If the rights of the Standard Content Licence Agreement do not give adequate rights a Member that wishes to download and use content should read the Standard Content Licence Agreement, Enhanced Licence Agreement and Exclusive Use Licence Agreement to determine which will best meet its requirements.

5.3 Content is provided to the Site through members entering into a Photographer’s Supply Agreement (“Photographer's Supply Agreement”). If a Member is interested in posting images they must be wholly owned by the Member.  Any posting of photographs by the Member will be governed by these terms and our Photographer’s Supply Agreement, and the Member should review the Photographer’s Supply Agreement terms and conditions and agree to them before posting content to the Site.

6. Download Credits and Payment on Download

6.1 Using the Credit Purchase Page within the membership portion of the Site, the Member can purchase download credits. Download credits can be purchased online with VISA, MasterCard and American Express. The price of download credits purchased through the Site will be the price specified on the Site at the time of the purchase. Upon presentation of credit card information for the purchase of Credits, or to pay for Content licensing on image download, the Member warrants that the person using the card is entitled to do so and that the billing information provided is accurate. By approving the purchase of the download credits, or Content download, the Member authorises mychillybin to charge the designated credit card for the total amount of the purchase. Download credits can be used to purchase a Standard Content Licence, Enhanced Licence Agreement, or an Exclusive Use Licence Agreement.

6.2 The price of download credits includes New  Zealand goods and services tax (GST) for relevant Members.

6.3 All free/promotional credits, provided to Members by mychillybin, shall expire within three months of receipt, and be permanently deleted from Member accounts.

7. Rules of Conduct

7.1 The Member will not post or transmit via any forum any message, information, data, text, files, links, software or other materials that:

(a) is or is reasonably likely to be defamatory, personally offensive, upsetting, obscene, unsuitable for persons under the age of 18 years or that we may advise from time to time that we reasonably consider to be in any way objectionable;

(b) infringes the intellectual property rights of any person;

(c) the Member knows or suspects to be false or misleading;

(d) is otherwise in breach of any relevant statute or rule of law; or

(e) contains any virus or other destructive component.

7.2 The Member will not do any of the following (either directly or indirectly) while using any forum:

(a) harass, threaten, defame, embarrass, disrespect the privacy or feelings of or cause distress or discomfort upon another forum user or other individual or entity;

(b) disrupt the flow of dialogue in a forum or otherwise act in a manner that negatively affects other users;

(c) impersonate in a forum any person;

(d) post or transmit any unsolicited advertising, promotional materials or any other forms of solicitation in a forum, unless expressly authorised by mychillybin;

(e) breach any applicable law or regulation; or

(f) engage in any other conduct that mychillybin advise that we consider (in our absolute discretion) inappropriate.

7.3 The Member will not:

(a) use the Site in any manner that could damage, disable, overburden or impair the Site or interfere with any other party's use and enjoyment of the Site;

(b) attempt to gain unauthorised access to any other mychillybin member accounts, computer systems or networks associated with the Site; or

(c) obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.

7.4 The Member may only use this Site for lawful purposes.

8. Content Management

8.1 Mychillybin will endeavour to review all communications or Content uploaded to the Site, but will not be responsible for the Content, quality, or consequences of your uploading or downloading such communications or Content.

8.2 Mychillybin reserves the right to delete, move or edit any communication or Content that it may determine, in its sole discretion, is unacceptable. The Member shall remain solely responsible for all communications made under its Member Name. Mychillybin shall have the right but not the obligation to correct any errors or omissions in any Content, as it may determine in its sole discretion.

9. Variation

9.1 Mychillybin reserves the right to change any of the terms of this Membership Agreement at any time, and the Member agrees to be bound by such changes. If and when changes are made to this Membership Agreement, a notice will be published on the Site. The Member should make sure they have read and understand all such changes. The Members continued use of the membership portions of the Site after such notice constitutes its binding acceptance of the terms and conditions in this Membership Agreement as it may have changed.

9.2 Where Mychillybin propose in a 12 month period to increase the number of download credits required to license more than 50% of the Content on the Site mychillybin will provide the Member with three months notice. Members have three months to use credits before the relevant change is made. Where the Member is unsatisfied with the significant change following the three month notice period they may terminate their membership as set out below.

9.3 Mychillybin may suspend, change or discontinue any part of the Site other than as contemplated in clauses 9.1 and 9.2 at any time without notice.

10. Audit

10.1 The Member will on reasonable notice and at mychillybin’s expense permit mychillybin access to the Member’s premises, and to all such other premises and books records, documents and other property that are reasonably required so that mychillybin may verify compliance with the terms of this Membership Agreement and any other licence that may have been purchased.

10.2 Should an audit reveal that a Member has been using Content in a manner permitted by the Standard Content Licence Agreement or Enhanced Licence Agreement but without having that licence then without prejudice to any other rights mychillybin might have Member shall be required to pay that licence fee associated with the licence that it should have purchased together with interest compounding monthly at 2% above mychillybin’s bank’s overdraft interest rate from the date the Content was downloaded.

11. Termination

11.1 This Membership Agreement is effective until terminated. The Member may terminate this Membership Agreement on two weeks notice by emailing info@mychillybin.co.nz or by such other means of written notice acceptable to mychillybin which enables confirmation of the Member’s identity and the Member’s intention to terminate the Membership Agreement.  

11.2 Mychillybin may on two week’s notice suspend your access to the membership portions or terminate your membership of the Site for inactivity. Mychillybin defines inactivity as failing to access the membership portions of the Site for an extended period of time, as reasonably determined by mychillybin such period being not less than 24 months.

11.3 Mychillybin may suspend your access to the Membership portions of the Site or terminate your membership if you breach any of the terms of this Membership Agreement or any other agreement between the Member and mychillybin and fail to remedy that breach within 14 days of mychillybin notifying you of that breach.

11.4 Mychillybin may terminate your access to the Site and/or your membership for any reason whatsoever by giving you two weeks’ notice in writing.

11.5 Termination of this Membership Agreement shall operate without prejudice to mychillybin’s rights, defenses and limitations of liability provided under this Membership Agreement, which rights, defenses and limitations of liability shall survive termination of this Membership Agreement.

11.6 Immediately upon termination of your membership of the Site pursuant to clauses 11.2 or 11.3, you agree that all download credits remaining in your account will be forfeited and any licence you have for Content will be terminated.

11.7 Upon termination of your membership of the Site pursuant to clause 11.4, you agree that all download credits remaining in your account at the expiry of the notice period will be forfeited.  Mychillybin shall not be liable for part of full reimbursement of any unused credits.

11.8 At any time after the termination of this agreement pursuant to clause 11.4, mychillybin may also, at its sole discretion, terminate any Standard Content Licence, Enhanced Licence Agreement and Exclusive Use Licence Agreement granted to you prior to termination of your membership.

12. Indemnity

You guarantee the full and complete performance of all the terms and conditions of this Membership Agreement. You also agree to indemnify, defend and hold mychillybin and its affiliates, and their respective directors, officers, employees, shareholders, partners, licensors and agents (collectively, the "mychillybin 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 mychillybin Party in connection with: (i) any use or alleged use of the Site under your Member Name by any person, whether or not authorised by you; (ii) anything  resulting from any communication made or Content uploaded under your Member Name; or (iii) any breach by you of this Membership Agreement.

13. Liability

13.1 Where the Member is not an individual and/or is acquiring content for business purposes the Member agrees and acknowledges the provisions of the Consumer Guarantees Act 1993 will not apply.

13.2 Nothing in this Membership 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.

13.3 The Site, including any Content 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. Mychillybin does not represent or warrant that the Site or the Content will meet your requirements or that use will be uninterrupted or error free.

13.4 Subject to Members rights as set out in clause 13.1 Mychillybin does not represent or warrant that the Site or any Content available for downloading through the Site will be free of viruses or similar contamination or destructive features.

13.5 Subject to Members rights as set out in clause 13.1 the Member assumes all responsibility and risk for use of the Site including without limitation any of the Content or information contained therein.

13.6 Without prejudice to a Member’s rights as set out in clause 13.1 in no event shall any mychillybin Party be liable for any incidental, indirect, punitive, exemplary, or consequential damages whatsoever (including damages for loss of profits, interruption, loss of business information, or any other pecuniary loss) in connection with any claim, loss, damage, action, suit or other proceeding arising under or out of this Membership Agreement, including without limitation your use of, reliance upon, access to, or exploitation of the Site, the Content or any part thereof, or any rights granted to you hereunder, even if mychillybin has been advised of the possibility of such damages, whether the action is based in contract, tort (including negligence), infringement of intellectual property rights or otherwise.

13.7 In so far as mychillybin may be liable notwithstanding the above, then to the extent permitted by law, but without prejudice to a Members rights as set out in clause 14.2 the total liability of mychillybin whether in contract, tort (including negligence) under statute or regulation or otherwise for any loss, damage or injury arising directly or indirectly from any defect in the Site or any failure in respect of the Content or any breach of mychillybin’s obligations to the Member is limited to the lesser of $500 or the value of purchases by that Member in the previous three months.

14. Terms of Use/Privacy Policy

The Member agrees to comply with any standard terms of use on the Site and that mychillybin may use any information gathered about the Member in accordance with any Privacy terms on the Site. Mychillybin may change these from time to time. It will set out next to the hyperlink the date the terms were last updated. Any use of this Site by a Member will be treated as agreement to the latest terms.

15. Laws of New Zealand

The Site is controlled, operated and administered by mychillybin 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 Membership 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 Membership Agreement or as to any matter arising out of this Membership 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

If mychillybin is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse mychillybin for its legal fees, costs and disbursements if mychillybin is successful.

16. General Terms

16.1 Mychillybin’s failure to insist upon or enforce strict performance of any provision of this Membership Agreement shall not be construed as a waiver of any provision or right.

16.2 If any term or condition of this Membership Agreement is or becomes void or voidable then that term or condition will be severed from this Membership Agreement and replaced with a provision which validly and enforceably accomplishes to the extent possible the commercial object of the provision and the remainder of this Membership Agreement will remain valid and enforceable.

16.3 You may not assign your rights or obligations under this Agreement without the prior written consent of Mychillybin. Mychillybin may assign this Membership Agreement without your consent.

17. Notices

Any notice to be given in terms of this Membership Agreement must be in writing made by email transmission sent to the last known email address provided by the Member on their registration details or by the Member to info@mychillybin.co.nz. Any communication by email will be deemed to be received when transmitted to the correct email address of the recipient.

18. Acknowledgement

By clicking on the ‘I Accept’ button below you accept this Membership Agreement with mychillybin on the above terms and conditions. If at any time the terms and conditions of this Membership Agreement are no longer acceptable to you, you should immediately cease use of the membership portions of the Site. You further agree that it is the complete and exclusive statement of the agreement between you and mychillybin, which supersedes any proposal or prior agreement, oral or written, and any other communication between you and mychillybin relating to the subject of this Membership Agreement.

Contact

If you have concerns relating to the Site or this Membership Agreement, please contact mychillybin at info@mychillybin.co.nz.

Please note: Update to Standard Content Licence Agreement clause 2.1, 5, 7.2, 9 on 23/9/2011.

Update to Photographers' Supply Agreement clause 4, 7, 10 on 23/9/2011

Select General image use for all applications that are not purely editorial in nature.

General includes, for example;

Email any query to fast@mychillybin.co.nz for a rapid response.

This image is available for both General use, and also for Editorial use

General use, in short, includes;

Editorial use, in short, means material of genuine public interest and containing no commercial message, advertorial content, or similar, on blogs, on information signage, in magazines, in newspapers and in newsletters

Email any query to fast@mychillybin.co.nz for a rapid response.

Select Editorial image use for images for editorial use in:

Editorial use, in short, means material of genuine public interest and containing no commercial message, advertorial content, or similar.

Note that whilst these images will be suitable for Editorial Use, some of these images are not able to be used for General purposes as they contain brands, people, etc without needed legal releases.

Email any query to fast@mychillybin.co.nz for a rapid response.

This image is available only for editorial use.

In short, this means material of genuine public interest and containing no commercial message, advertorial content, or similar. Material such as;

These Editorial Use Only images are not available for General purposes as they may contain identifiable people, intellectual property, etc, without needed legal releases.

Email any query to fast@mychillybin.co.nz for a rapid response.

Select the Exclusive Use Licence Full or Forward for exclusive image use, for a specified period of time.


May be used in the following applications:

(i) Editorial content - material that is of genuine public interest and free of advertising and advertorial content.

Except when the actual image is shown to be for Editorial Use Only, then it can also be used for the specified period in the sames way as the Enhanced Licence, as follows

(ii)   Items not for resale (e.g. ads, marketing materials, websites, social media posts, unpaid apps, posters, flyers, reports, ...)

(iii)   Items for resale (e.g. use of image on coasters, paid apps, screensavers, or printed map books, reports, magazine covers etc that are sold on websites or through shops ...)

Specified Period - images may not be used beyond the specified period, without a further licence of some type being obtained.

For more including prohibited uses, see full Standard Licence, Enhanced Licence, Exclusive Licence, or email your query to fast@mychillybin.co.nz for rapid response.

Select the Enhanced Licence for any of the following:

(i) Items not for resale (e.g. ads, marketing materials, websites, social media posts, unpaid apps, posters, flyers, reports, ...)

(ii) Items for resale (e.g. use of image on coasters, paid apps, screensavers, or printed map books, reports, magazine covers etc that are sold on websites or through shops ...)

The Enhanced licence is not needed for Editorial Applications.

For more, including prohibited uses, see full Standard Licence, Enhanced Licence, Exclusive Licence, or email your query to fast@mychillybin.co.nz for rapid response.

Select the Standard Licence for any of the following:

(i) Editorial content of general public interest in blogs, social media, newspapers, magazines, newsletters

(ii)  Items not for resale, up to 100,000 copies

(iii) Items for resale - not coveredThe Enhanced Licence or the Exclusive Licence are needed for items for resale.  Items such as paid apps, coasters, place mats, sold books, greeting cards, etc.

For more, including prohibited uses, see full Standard Licence, Enhanced Licence, Exclusive Licence, or email your query to fast@mychillybin.co.nz for a rapid response.