Terms and Conditions

Dear Artist

The following is a legally binding agreement between anyone intending to upload data or materials onto www.mychillybin.co.nz (the Site) (“Supplier”) (and mychillybin Ltd (“mychillybin”), the operator of the Site. The Supplier should read the Agreement carefully to  be sure that the Supplier understands it.

This Agreement is to be read in conjunction with the Membership Agreement that all persons providing content to, or downloading content from, the Site have previously entered into and any other relevant terms on the Site.

These terms, as they may be amended from time to time must be agreed for each upload. Once agreed for an upload these terms describe and control the Supplier’s  legal relationship with mychillybin with respect to the photograph’s the Supplier uploads in that instance, the rights the Supplier grants to mychillybin in photographs, images or other media submitted by the Supplier to mychillybin ("Content") and what uses mychillybin may make of the Content. The Supplier can view any changes made to these terms by checking the date the terms were last updated. If and when changes are made to these terms a notice will be published on the Site. The hyperlink next to the Photographer’s Lounge page will also be date stamped to show the last time the terms were changed. Where the Supplier  accepts payment from mychillybin they are deemed to accept any changes to these terms.  Changes to these terms will also change any agreement realized in relation to earlier uploads. If the Supplier does not agree to any changes the Supplier can remove their images.

Any terms not defined here have the definition set out in the Members Agreement.

1.       Supply of Content: Members pay a fee to license content from the Site. Members may make broad use of such downloaded Content and are under no obligation to inform mychillybin or the Supplier of the uses made of this Content.

The parties acknowledge that the Supplier may provide information, photographs and other material to mychillybin using the uploading procedures via the “Submit Your Photos” section of the Site or such other procedures as the parties may mutually agree. Each upload of Content will be governed by these terms, which will be confirmed by the Supplier upon each uploading session. Mychillybin, in its sole discretion, may determine which submitted Content is suitable for posting on the Site or other means of distribution, and only such Content as it deems suitable will be considered “Approved Content” for the purposes of applicable provisions of this Agreement. A confirmation email outlining content approved and/or declined shall be sent to the Supplier following uploading of such Content.

Exclusivity: Suppliers agree that Approved Content is exclusive to the mychillybin site. Approved Content shall not be provided to any on-line image libraries either in New Zealand or overseas.

2.       Grant of Authority: By uploading Content and while the Content remains uploaded the Supplier authorises mychillybin to:

2.1     Present and Sell Copies: Mychillybin may use, reproduce, distribute, redistribute, publish, republish, upload, post, transmit, crop, package, repackage, produce and sell prints or similar image products or display Content to prospective licensees through the Site or other venues which it may determine from time to time.

2.2     Promotional Purposes: Unless and until the Supplier specifies in their account that their Content is not to be used for promotional purposes then the Supplier authorises mychillybin to use its Approved Content for:

  (a)   “Promotional Uses” (please see “Edit Profile”) on your profile page

on the Site, and

  (b)   for its own business purposes relating to the promotion of the Site, its distribution programs, and to expand the market for the licensing of Approved Content (including, without limitation, the use of the Approved Content and the Member's registered and unregistered trademarks relating to Content for marketing, sales and promotional efforts whether on the Site or through third parties).

The Supplier acknowledges that no compensation shall be due to the Supplier for use of Approved Content for such business purposes.

2.3 Standard Content Licence: The Supplier authorises mychillybin to grant worldwide, non-exclusive and non-transferable sub-licenses to Members in accordance with the terms of the Standard Content Licence Agreement (as those terms may change from time to time) that the Supplier acknowledges having read and agreed to.

2.4 Enhanced Licence: Unless and until the Supplier specifies in their account that their Content is not to be sublicensed for Enhanced Licence purposes mychillybin may grant worldwide, non-exclusive and non-transferable sub-licenses to Members in accordance with the terms of the Enhanced Licence Agreement (as those terms may change from time to time), that the Supplier acknowledges having read and agreed to. The Supplier acknowledges that Members who purchase an Enhanced Licence will have extended usage of the Supplier’s Approved Content.

2.5 Exclusive Use Licence: When the Supplier specifies in their image upload documentation that the Content is available to be sublicensed for Exclusive Use Licence purposes mychillybin may grant worldwide, exclusive, and non-transferable sub-licenses to Members in accordance with the terms of the Exclusive Use Licence Agreement (as those terms may change from time to time), that the Supplier acknowledges having read and agreed to. The Supplier acknowledges that Members who purchase an Exclusive Use Licence will have Exclusive usage of the Supplier’s Approved Content as detailed in the Exclusive Use licence, for the Exclusive Use Period.

3.       Accounts: Mychillybin has the right to refuse the creation of an account and the right to close any existing account, for fraud, violation of a third party's rights of privacy or publicity, artificially inflating downloads, repeated submission of Content that is obscene in nature, violent or that might be construed as defamatory or for any breach of the terms of this or any other agreement that the Supplier  has with mychillybin.

If the Supplier’s account is terminated for any of the above reasons the Supplier must obtain authorisation from mychillybin prior to establishing another account. If the Supplier  attempts to establish another account without obtaining such authorisation, mychillybin may permanently ban the Supplier  from this Site and its affiliated websites and services.

Where mychillybin reasonably believe the Supplier has infringed a third party’s copyright by uploading Content the Supplier will be permanently banned from this Site.

4.       Earnings: Mychillybin agrees to pay a licence fee collected in respect of Approved Content uploaded by the Supplier that is licensed by Members. This fee shall be paid to the  Supplier according to the Fee Schedule. Mychillybin reserves the right to change the Fee Schedule in  its sole discretion. These changes will be communicated on the Site. If at any time the Fee Schedule is not acceptable to the Supplier, the Supplier  may refrain from providing further  Content and/or terminate this Agreement see the Termination clause below for details.  Where there has been Supplier Approved Content downloaded and the Fees payable for those downloads equate to $100 or such other amount as mychillybin may specify from time to time (“Sufficient Supplier Approved Content”) Mychillybin will pay fees in respect of those downloads to Supplier. If Sufficient Supplier Approved Content has not been reached within six months of the first payment or commencement of this Agreement (whichever is later) then Mychillybin will pay fees in respect of downloads of Supplier Approved Content on or about the 30th day of the month following expiry of that six month period.  The Supplier’s payment of earnings will be net of:

  (a)   relevant taxes or other withholdings required by applicable law;

  (b)   any moneys owing by the Supplier to mychillybin under this Agreement or otherwise;

  (c)   legal and other reasonable fees incurred in enforcing this Agreement, the Standard Content Licence Agreement, Enhanced Licence Agreement and Exclusive Use Agreement on behalf of the Supplier.

Mychillybin reserves the right from time to time to make free upsizing offers on Approved Content for promotion and competitiveness purposes. In each case when Approved Content is licensed under such an offer the Supplier will receive the earnings shown in the Fee Schedule appropriate to the actual credits used in the transaction.

Mychillybin is entitled to hold-off payment to the Supplier, as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of the Supplier under this Agreement.

If mychillybin makes an overpayment of fees to the Supplier for any reason, mychillybin shall have the right to deduct the amount of such overpayment from the Supplier’s accrued earnings or to demand the immediate repayment of such overpayment.

5.       Content Management: The Supplier acknowledges that mychillybin cannot take responsibility for the compliance by purchasers and licensees of the terms of this Agreement, the Standard Content Licence Agreement, the Enhanced Licence, and the Exclusive Use Agreement, and the Supplier acknowledges the possibility of Content being used in a manner that is not permitted in such agreements.  Mychillybin acknowledges that where a sub licensee breaches the terms of the Standard Content Licence, the Enhanced Content Licence and the Exclusive Use Agreement the Supplier may pursue them at law. The Supplier also agrees that notwithstanding any rights they  may have to pursue the licensees of such Content at law, mychillybin shall have no liability to the Supplier  or any person claiming through the Supplier for any breach by a licensee of the terms of any agreement respecting Approved Content. Mychillybin will use reasonable efforts to assist in the protection of the Supplier’s intellectual property rights, at the Supplier’s request and expense.

6.       Intellectual Property: By uploading Content, the Supplier warrants that they own all proprietary rights, including copyright, in and to the Content.

Mychillybin prohibits any Content or any other material that infringes any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.

The Supplier agrees that no mychillybin Party shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content.

7.       Model/Property Releases: Other than for Content supplied and marked during upload for Editorial Use only and openly taken from standing in a public place, the Supplier:

  (a)  agrees to provide valid and accurate model releases for all Content uploaded to mychillybin that, in mychillybin's judgment, contains an identifiable face or identifiable human figure. If the Supplier does not have a model release for Content that contains an image or images of an identifiable person, mychillybin will decline the image.

  (b) also warrants that where required by applicable law, the Supplier has also obtained and agrees to supply a valid and binding property release relating to any identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the uses under the Standard Content Licence Agreement,  Enhanced Licence Agreement and the Exclusive Use Agreement.

The Supplier agrees that they are solely responsible for retaining all original model and property releases and maintaining complete and accurate model release records. Model and / or property releases are to be provided to mychillybin at the time of submitting Content. The provision of falsified, inaccurate or otherwise defective model / property releases can result in the immediate termination of the Supplier’s  account without prior notice.

Please feel free to use our simple Model/Property Release form, which is also located in the Photographer's FAQ's for easy access.

8.       Termination of Agreement: This Agreement is effective until terminated. The Supplier may terminate this Agreement at any time by giving six weeks written notice to mychillybin using [email protected] or such other means of written notice acceptable to mychillybin which enables confirmation of the Supplier’s identity and the Supplier’s intention to terminate.  Within two weeks of receipt of confirmed notice requesting termination mychillybin shall ensure that all the Supplier’s Approved Content shall cease to show in general site Content searches.  To provide some time for already pending licensing activity by Members to be completed, until termination date the Supplier’s Approved Content may continue to show on Site when searched by image number, or when linked from prior Member search and communication activity, and mychillybin may continue licensing until termination date, six weeks after confirmed notice is received.

Mychillybin may terminate this Agreement for any reason by giving the Supplier six weeks notice by e-mail at the last address contained in the Supplier’s membership information. Where mychillybin terminates the Supplier’s membership under the Membership Agreement their role as a Supplier under this Agreement will terminate also.

Upon the termination of this Agreement, the grant of authority given to mychillybin shall cease subject to the following conditions. Upon termination Mychillybin shall fully remove Approved Content from the Site, other than as needed for transactional audit and record keeping.  Regardless of the expiration or termination of this Agreement, mychillybin will continue, in accordance with this Agreement, to pay earnings due to the Supplier in respect of licences granted to members during any transitional period, subject to any rights of set-off under this Agreement or at law.

Upon termination, mychillybin will be entitled to retain all amounts owing to the Supplier for a period of up to five weeks to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating the Supplier’s account.

While mychillybin may choose to terminate the rights granted to licensees or sub-licensees, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by mychillybin pursuant to this Agreement.  Licences granted to Members prior to termination or expiration of this Agreement will unless mychillybin chooses otherwise, continue in accordance with the Standard Content Licence, Enhanced Licence Agreement and Exclusive Use Licence Agreement as appropriate.

Termination of this Agreement shall operate without prejudice to mychillybin's rights, defenses and limitations of liability under this Agreement and  the Members Agreement. Those rights, defenses and limitations of liability survive termination of this Agreement. In addition, the provisions of this Agreement relating to: Content Management, Representations and Warranties, Indemnity, Disclaimer of Warranties and all limitations of liability, survive termination of this Agreement and continue in full force and effect.

     Notwithstanding termination of this agreement for any reason whatsoever, the Supplier agrees that mychillybin is authorised to continue with sub-licences of Content granted by mychillybin to its members prior to the date of termination of this agreement and such sub-licences shall remain in full force and effect.

9.       Immediate Termination: Either party may terminate this Agreement upon written notice effective immediately upon receipt if the other party:

  (a)   liquidates all or substantially all of its assets, dissolves as a corporation other than through inadvertence; otherwise ceases to do business in a material way;

  (b)   makes an assignment for the benefit of creditors;

  (c)   files a petition in bankruptcy, petitions or applies for a receiver or trustee for all or any substantial part of its property and such receiver or trustee is appointed, or commences, or has commenced against it, a proceeding under any bankruptcy, reorganisation, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, any of which shall remain in force for a period of four weeks or more;

  (d)   is adjudicated insolvent or bankrupt; or

  (e)   is in breach of this Agreement.

The Supplier agrees that mychillybin may deem an account to be terminated and may off-set any earnings or credits contained in such account against its costs of administration if there has been:

  (a)   two years pass with no log-in or other activity in the Supplier account. Mychillybin will use reasonable commercial efforts to contact the Supplier based on the information provided in the account profile (on the Site) of such Supplier; or

  (b)   in the reasonable opinion of mychillybin, any material misrepresentation as to the capacity, identity or copyright ownership of Content or the Supplier provided hereunder.

10.     Representations and Warranties: The Supplier  acknowledges and accepts the following:

  (a)   the Supplier  has the legal capacity and authority to enter into this Agreement, is the sole and exclusive owner of the Content, has the right to grant all of the licence rights contemplated to be provided under this Agreement, and has not granted any rights or licences to any Content or any other intellectual property or technology that would conflict with this Agreement;

  (b)   the Content will include all necessary descriptive information to enable its accurate and effective editorial use, and marketing use on the Site, which information will be complete and accurate in all material respects and will not include false, misleading or inapplicable metadata intended to or which has the effect of keyword “doping” or improperly altering search results that would otherwise be applicable to such Content;

  (c)   no portion of the Content as delivered to mychillybin, contains any disabling mechanism or protection feature designed to prevent its use, copying or enjoyment in the manner contemplated in this Agreement, and all Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Site or the Content or any other hardware or computer system, or which would otherwise render inaccessible or impair the use of the Content or the Site in any way;

11.     Indemnity: The Supplier agrees to indemnify, defend and hold all mychillybin Parties  harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any mychillybin Party as a result of or in connection with:

  (a)   any use or alleged use of the Site or provision of Content under the Supplier’s Member Name by any person, whether or not authorised by the Supplier;

  (b)   any claim threatened or asserted against any mychillybin Party to the extent such claim is based upon a contention that any of the Content used within the scope of this Agreement and the Standard Content Licence Agreement, Enhanced Licence Agreement and Exclusive Use Agreement infringes any trademarks, trade secrets, right of privacy or publicity, copyright or other intellectual property rights of any third party;

  (c)   or resulting from any communication made or Content uploaded under the Supplier’s  Member Name (including damage caused by viruses) ; or

  (d)   any breach by the Supplier of this Agreement.

12.     Limitation of Liability: The Supplier assumes all responsibility and risk for use of the Site including without limitation any of the content or information contained therein.  Please refer to the Membership Agreement for mychillybin’s full limitation of liability.

Disclaimer of Warranties: The Site, including any content contained therein, are provided by mychillybin “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 be made available for sale or license or that their use will be uninterrupted or error free.

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.     General Terms: The relationship of the parties is that of independent contractors, this is not an employer - employee relationship.

Acknowledgement: By clicking on the ‘I Accept’ button below you accept these terms  and the Membership Agreement, and also acknowledge that you have had a reasonable opportunity to seek independent advice and fully understand these Terms. In consideration of mychillybin agreeing to provide a means for the sale or license of your Approved Content, you agree to be bound by the Membership Agreement and these terms. 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 agreement.

Contact Us: If the Supplier  has concerns relating to this Agreement, they should contact mychillybin at [email protected].