actionpics Terms and Conditions

Last updated: 9/08/2017

Welcome to (the “Site”), where actionpics, Pty Ltd. ("actionpics", "we", "us" or "our") provides various photography-related tools, services and resources that photographers can use to store, display, market and distribute digital copies of their photos.

Please read these Terms and Conditions (collectively with actionpics' Privacy Policy and Copyright Policy, the "Terms") fully and carefully before accessing, browsing or using any part of the Site or the Services because these Terms set forth the legally binding terms for any use of the actionpics Site or the Services. By registering for and/or using the Services in any way, you are acknowledging that you agree to these Terms and all other operating rules, policies and procedures that we may publish (and update) from time to time through the Services, each of which is incorporated in these Terms by this reference. If you are entering into these Terms on behalf of an entity, you represent and warrant that you have the right, authority, and capacity to enter into these Terms on behalf of the entity you represent.

  1. Applicability of Terms and Conditions.
    1. These Terms apply to anyone who uses the Services in any manner, including to anyone who visits, browses, purchases, or downloads from the Site, or from an individual photographer's actionpics-hosted website (each, a "Photographer Site").
    2. Some services are accompanied by and subject to additional terms and conditions ("Supplemental Terms"). Supplemental Terms are incorporated herein by this reference, and your use of any Service that is governed by any Supplemental Terms will be deemed your acceptance and agreement to the applicable Supplemental Terms.
    3. You are solely responsible for ensuring that these Terms and your use of the Services comply with all laws, rules and regulations applicable to you. The right to access the Services is revoked where these Terms or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
  2. Eligibility. You represent and warrant that you are at least 18 years old. If you are under age 18, you may not use the Services.
  3. Registration. Registration. Although unregistered users may be able to access some parts of the Services, certain features may only be available to users who have registered for an account on the Services (an "Account"). To register, you must provide accurate and updated information for your Account. In particular, you shall not select or use as a username: (a) a name of another person with the intent to impersonate that person; (b) a name subject to any rights of a person other than you without appropriate authorization; or (c) a name that is otherwise offensive, vulgar or obscene. You are solely responsible for any activity that occurs on your Account and for keeping your Account password secure. You may never use another person's Account without permission. Sharing Account information between multiple users, with or without the registered account-holder’s permission, is strictly prohibited.
  4. Email, SMS and Text Messaging. As part of the Services, we may communicate with you by sending you SMS text messages or emails. Please note that text messaging fees may apply to the sending or receipt of SMS text messages. By registering for an Account, you hereby expressly consent to receiving SMS text messages from us relating to the Services. You may opt out of receiving SMS, text and email messages as described in our Privacy Policy, but some related notification features of the Services may not work properly if you do opt out.
  5. Content.
    1. Definition. For purposes of these Terms, "Content" means all information, data, text, photographs, videos, audio clips, written posts, comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. "Content" also includes all User Content (as defined below).
    2. Notices and Restrictions. The Services contain Content from various sources, including us, our partners and users, and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. As members of the photography community, actionpics strongly advocates for the respect of others' intellectual property rights. Accordingly, you shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services. You also agree to abide by any notices, information, and restrictions on any User Content (as that term is defined below) that you access through the Services. In particular, if you are accessing or downloading any Photographs (defined below), you agree to respect and abide by the photographers' copyright and any notices posted or agreements required by these photographers concerning your access to and use of their work.
    3. Use License From actionpics. Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display on your browser or device in connection with the Services) Content (excluding our users' Photographs, as that term is defined below) solely for the purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us and, if applicable, the relevant copyright holder. Except as expressly permitted by us or the applicable copyright holder, you shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates these Terms or any third party right.
  6. License Grants For User Content.
    1. User Content Generally. All Content you provide (or contribute, add, create, upload, submit, distribute or post) ("Contribute") to the Services is referred to as "User Content." User Content refers to both "Photographs" and "Non-Photographic Content." "Photographs" are any and all photographic or graphic works or other images you store, display or make available through the Services. All other User Content, whether User Content you contribute voluntarily (for example, text added to Photographs and galleries featuring Photographs, comments you make to blog posts, posts you contribute to forums or other public portions of the Services, or custom website pages that are created using actionpics' templates) or User Content we collect automatically from your usage of the Services (for example, analytic data or metadata), is referred to in these terms as "Non-Photographic Content". We believe this distinction is important because we respect your intellectual property rights, especially in your Photographs, and we believe you should be able to grant a narrower license to your Photographs. For clarity, templates, layouts, or other arrangements of User Content (but not the User Content itself) are not considered User Content when they are made through tools offered through the Services, and shall remain the property of actionpics or our licensors. User Content also does not include Feedback, which is defined and further described below.
    2. You Retain Your Rights to Your Content. Most importantly, you continue to own your User Content and can use such User Content in any way you want (provided you do not grant any rights to the User Content that interfere with the rights and licenses you grant to us).
    3. License to Your Photographs. In order for us to provide you with the Services, we need the rights to use your User Content in specific ways. The following license grants actionpics these rights, solely in conjunction with the Services. For your Photographs, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable (solely to provide your Photographs to those third party service providers that you authorize us to do so) and transferable license to use, display, modify, crop, reformat, reproduce, distribute, and prepare derivative works of such Photographs, solely in connection with providing the Services. This license allows us to take actions such as creating thumbnails and other various sizes of the Photographs you list on your website, presenting your images in search results on the Site, allowing potential Purchasers (defined below) to browse your portfolio or online store, or to modify Photographs so that we can preview for you how they will look if you use one of our website templates. We have no right to use your Photographs in any manner that goes beyond providing the Services, and we claim no commercial rights to your Photographs themselves beyond these rights. If your images will appear in our independent marketing efforts, our team will ask permission beforehand.
    4. License to Your Non-Photographic Content. In addition to the limited rights to use your Photographs as detailed above, to provide the Services, we also need rights to use other User Content you contribute. The license in this section gives us the ability to, for example, support and display image captions and gallery descriptions, your "About" page, other custom website content, and other text you contribute to your Photographer Site, the Site or the Services. We will exercise these rights only in connection with the Site, the Services and our (and our successors' and assigns') businesses. Therefore by providing any Non-Photographic Content, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit, in connection with the Services and our (and our successors' and assigns') businesses, your Non-Photographic Content, including for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (such as third party websites and feeds), until you remove, or until we remove pursuant to your request or as otherwise set forth herein, such Non-Photographic Content from the Services; provided that this license shall survive to the extent such Non-Photographic Content is included in any existing promotional or marketing materials.
    5. Public vs. Private Content. Certain User Content, including Photographs, can be designated either "Public" or "Private" through certain functionality on the Services. Additionally, certain portions of the Services are generally considered Public. By designating any of your User Content as "Public" or "Publicly searchable" or by posting User Content, including Photographs, to publicly viewable portions of the Services, such as your Photographer Site, through the search function, or on a "Lattice" board, you hereby do and shall grant other users of the Services (i.e. web site visitors) a non-exclusive, worldwide, royalty-free, perpetual license to access, display, and view such public User Content solely through the Site and/or the Services in connection with their use of the Services as permitted by these Terms. For clarity, you have ultimate control over whether User Content is designated Public or Private, and we will not alter the status of your User Content from Private to Public, unless dictated by you via the Services. This license conveys no rights to users of the Services (i.e. visitors to your website and ours) to use your Photographs in any manner that goes beyond the Services, and conveys no commercial rights to your Photographs themselves in any way beyond any rights additionally or specifically granted by you. The licenses contained herein will survive your termination of your Account or the Services.
    6. Feedback. We appreciate our users' interest in improving and expanding the Services. If you choose to send us content, information, ideas, suggestions or other materials relating to our Site, Services or business ("Feedback"), you hereby assign such Feedback to us, and you agree that actionpics is free to use any Feedback, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.
    7. Name and Trademarks. You hereby grant to actionpics the right to use and publish your name, trademark, trade name, or other identifier in connection with identifying and attributing your Photographs and User Content and for advertising, publicizing, and promoting the Services ("Promotions") in our sole discretion. However, we do not have any intention to use your identification information in Promotions against your wishes, so if you do not want your name to be used in connection with any Promotions, you may send a notice stating such to After receipt of your notice, actionpics will remove your name from any current promotions, and will not include your name in future promotions that commence ten (10) business days or more after the day we receive your notice.
  7. Availability of Content.
    1. Our goal is to provide a service with outstanding uptime and reliability for photographers to upload, manage, and distribute content. Planned downtime and copyright claims against users may, however, cause us to make User Content unavailable (in addition to a specific user designating any User Content as private). Occasionally, circumstances may lead to some or all of the Services being unavailable for other reasons. Although we will try to keep the Services operating without interruption, we do not guarantee that any Content will be made available on the Site or through the Services.
    2. We reserve the right, but do not have any obligation, to remove, block, edit or modify any Content in our sole discretion, at any time, without notice to you and for any reason, including upon receipt of claims or allegations from third parties relating to such Content, provided that we shall only edit or modify Photographs as provided in Section 7c.
  8. Rules of Conduct.
    1. You shall not (and shall not permit any third party to) either (1) take any action or (2) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
      1. infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity (see our Copyright Policy);
      2. violates any local, state, national or international law or regulation or any contractual duty;
      3. is false, misleading, untruthful, inaccurate, or incomplete;
      4. is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, vulgar, pornographic, offensive, profane, illegal or otherwise objectionable or inappropriate as determined by us in our sole discretion;
      5. constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");
      6. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
      7. impersonates any person or entity, including any of our employees or representatives;
      8. includes anyone's identification documents or sensitive financial information; or
      9. harms minors in any way, including, but not limited to, by violating child pornography laws or laws prohibiting the depiction of minors engaged in sexual conduct.
    2. You also shall not (and shall not permit any third party to) violate or attempt to violate the security or operation of the Services or of our other systems or networks, including without limitation the following:
      1. taking any action that imposes or may impose an unreasonable or disproportionately large load on our (or our third party providers') infrastructure or violates the terms of the subscription plan or account for which you registered, including without limitation by exceeding the applicable bandwidth limits or sharing Account information between multiple individuals;
      2. interfering or attempting to interfere with the Services or any activities conducted on the Services;
      3. bypassing, circumventing or attempting to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
      4. running any form of auto-responder or "spam" on the Services;
      5. using software, devices, or other processes to "crawl" or "spider" any page of the Services;
      6. harvesting or scraping any Content from the Services;
      7. forging headers or otherwise manipulating identifiers in order to disguise the origin of any content transmitted through the Services; or
      8. otherwise taking any action in violation of our guidelines and policies.
    3. You shall not (directly or indirectly) take any actions that violate our intellectual property rights or the intellectual property rights of any other parties, including without limitation the following:
      1. deciphering, decompiling, disassembling, reverse engineering or otherwise attempting to derive any source code or underlying ideas or algorithms of any part of the Services (including any application), except to the limited extent applicable laws specifically prohibit such restriction;
      2. modifying, translating, or otherwise creating derivative works of any part of the Services; or
      3. modifying, translating, or otherwise creating derivative works of any part of the Services; or
      4. copying, renting, leasing, timesharing, distributing, or otherwise transferring any of the rights that you receive hereunder.
    4. We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to:
      1. satisfy any applicable law, regulation, legal process or governmental request;
      2. enforce these Terms, including investigation of potential violations hereof;
      3. detect, prevent, or otherwise address fraud, security or technical issues;
      4. respond to user support requests; or
      5. protect the rights, property or safety of us, our users and the public.
  9. E-Commerce Services.
    1. Terms for Both Sellers and Purchasers.
      1. Subject to the terms set forth herein and any applicable Supplemental Terms, actionpics hereby grants to you a license to access and use the e-commerce tools made available on the Services (collectively, the "E-Commerce Services") solely for the purpose of displaying, hosting, sharing, delivering, Selling, and Purchasing rights to Photographs or other applicable Content made available through the E-Commerce Services in accordance with any terms relevant thereto. For clarity, a "Purchase" or "Sale" through the E-Commerce Services refers to a purchase or sale of certain rights to or a physical print or product of the relevant Photograph or applicable Content, or the license of a digital download that includes limited usage rights. Unless otherwise expressly agreed to between the parties in writing, ownership in the actual Photograph or applicable Content remains with the original copyright holder, even after a Sale on the Services. A user who "Purchases" or "Sells" Content is referred to as a "Purchaser" or "Seller", respectively.
      2. actionpics reserves the right to change the manner in which it offers Services for the licensing of Photographs from time to time at its sole discretion.
      3. If you either Purchase or Sell Content through the Services, you hereby authorize actionpics to disclose your contact and relevant billing information to the other party in the transaction as well as any Third Party Service Provider (defined below) engaged by actionpics to provide services in connection with such transaction, to the extent necessary or desirable to process and facilitate the transaction, such as a print vendor responsible for the automated fulfillment of e-commerce orders from your website.
    2. Additional Terms for Sellers.
      1. If you will be Selling Photographs through the Services, you will need to obtain a merchant account from the billing services supported by the Service of actionpics (currently Braintree, a subsidiary of PayPal). Funds can only be collected through our authorized Billing Service. You agree and acknowledge that use of such this Billing Services may be subject to additional terms, which you are responsible for reviewing and complying with. Please note that we may in our sole discretion, change the Billing Services we support from time to time.
      2. You agree to pay actionpics a fee for each completed transaction that is initiated through the Services.
      3. If you sell a session (a group of photos uploaded to a single session) to a customer and after the sale add additional photos to the session the customer has access and rights to any new photos contained in that session.
      4. You agree to only sell in-focus photos (when not done as a specific technique) or risk having to supply a refund. As Action Pics endeavours to keep your photographs secure, purchases will not have access to a non-watermarked hi-resolution digital copy until after the point of purchase.
      5. You agree that actionpics will work as the mediator and arbitor for any disputes between you and the purchaser, including issues relating to quality of work, or refunds, and the decision will be at the sole discretion of actionpics.
      6. You will have the sole authority to set and control the prices for any Photographs you are Selling through the Services. actionpics will never alter any prices of a Seller's Photographs. Therefore, you acknowledge that you are solely responsible for any and all prices of Photographs you are Selling and that actionpics takes no responsibility with respect thereto. You further acknowledge that when setting the price for any Photographs you are Selling, you have taken into account the Transaction Fee that will be assessed by actionpics as set forth herein.
      7. You represent and warrant that you have all rights and licenses necessary to Sell and make such Photographs and/or applicable Content available for Purchase through the E-Commerce Services.
      8. You represent and warrant that you are adhering to all laws applicable to yourself in the relevant location(s) (local, state, national and/or international) in regards to making and selling such photographs and/or applicable Content and in failure to do so accept that Action Pics bares no responsibility for any infringement relating to such photographs and/or applicable content.
      9. You agree and acknowledge that Action Pics bares the right to remove any content upon being informed of it breaking any laws be they local, national or international.
      10. You agree and acknowledge that your Photographs and/or applicable Content will be licensed to Buyers in accordance with the license arrangement you designate for such Photograph and/or applicable Content when making such Photograph available for Purchase ("License Agreement").
      11. You hereby irrevocably waive all moral rights in your Photographs. This means that once you license Photographs and/or applicable Content to someone through the Services, you cannot control how they further use the Photographs and/or applicable Content as long as they stay within the scope of the applicable License Agreement.
      12. You agree that if a buyer buys a session and you later add additional photos to this session, the buyer will also have access to the additional photos.
    3. Additional Terms for Purchasers (including clients of actionpics users).
      1. By Purchasing a Photograph, you hereby agree to access, display, distribute or otherwise use such Photograph only as expressly authorized by and in accordance with the terms set forth in the License Agreement designated for such Photograph and in no other manner and for no other purposes.
      2. You hereby agree and acknowledge that any Photograph you Purchase is the sole responsibility of the Seller and Purchaser, and not actionpics, and actionpics makes no representations, warranties, or guaranties to you regarding the Photograph, including without limitation regarding the quality, authenticity, legality, appropriateness or accuracy of such Photograph.
  10. Downloading User Photos. This term applies to visitors and clients of actionpics users, regarding the image download capabilities available to you via the actionpics user’s Photographer Site. If you are not directly purchasing or licensing a Photograph using the actionpics E-Commerce Services, but rather downloading a Photograph or other User Content from a actionpics user in another manner, you acknowledge that the ability to download does not constitute a grant of usage rights. You also acknowledge that all usage restrictions still apply to you, and you agree that you will still fully comply with the photographer’s copyright, usage restrictions, and any other terms of any direct arrangements you have made with the photographer regarding usage of the User Content, including any compensation terms. If you are unclear about your usage rights to Photographs downloaded directly from a Photographer Site, please contact the photographer directly via the contact information link on their respective website.
  11. Security Features. actionpics employs a number of industry standard or better technology to restrict the ability of other users to make high resolution copies of Content on the Services (such as the Watermark described below). However, we cannot guarantee, and make no representations or warranties that any Content will not be copied or otherwise exploited without your consent. We also cannot control how a party will use your Content after you have authorized a Purchase, and therefore we cannot make any representations, warranties or guarantees about your Content outside of our performance of the Services.
  12. Payments and Billing.
    1. Royalties for Services. Certain of our Services, or certain of the services provided in connection with the Services by our third party business partners, may be subject to payments now or in the future (the "Paid Services"). You acknowledge that all prices and royalties are subject to change at actionpics' sole discretion. actionpics may change the sale transaction royalty percentage rate at our own discretion and without warning. We will endeavour to inform of any changes with ample warning. Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of this Agreement.
    2. Current Information Required. You must provide current, complete and accurate information for your Braintree Account. You must promptly update all information to keep your account current, complete and accurate, and you must promptly notify us or our payment processor if your Payment Method is canceled or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made here. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
    3. Change in Amount Authorized. Except as provided herein, if the amount to be charged to your Billing/payment Account varies from the amount you preauthorized (other than due to state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. For clarity, Transaction Fees assessed in connection with the E-Commerce Services will vary on a monthly basis, based on the number of Photographs Sold during the preceding calendar month.
    4. Reaffirmation of Authorization. Your non-termination or continued use of a Paid Service reaffirms that we are authorized to charge your Payment Method for that Paid Service.
    5. Termination and Cancellation. We try to avoid terminating anyone's access to the Services and will rarely do so. We will usually only exercise our right to terminate an Account when a user is in violation of these Terms, especially if a user is infringing on another user's, or our, intellectual property rights. However, since we may not be able to predict all the events that may require termination, we also reserve the right to terminate or suspend an Account with or without cause and/or without notice, and termination may be effective immediately. If you wish to cancel or delete your Account, you may do so either directly through the Services or through a request made to one of our employees. We do not provide any refunds in the event of termination or cancellation.
    6. Effect of Cancellation or Termination. Any fees paid hereunder are non-refundable. If, at the time of your cancellation, you still owe wholesale fees or transaction fees from completed image sales, we reserve the right to charge your credit card on file, post-cancellation. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability. We are happy to provide you with a copy of your Photographs upon your termination or cancellation of your Account, at your request, as long as you (a) satisfy the entire outstanding balance on your Account, including any fees or other expenses charged by actionpics at the time of such termination for creating and distributing such copy of your Photographs, and (b) are not in violation of any of the Terms. Although actionpics will make commercially reasonable efforts to store and preserve the material archived on the Services, you acknowledge and agree that actionpics is not responsible or liable in any way for the failure to store, preserve or access Photographs or other User Content you transmit or archive on the Services. You are strongly urged to take measures to preserve copies of any data, material, content or information you post or upload on the Services.
  13. Warranty Disclaimer.
    1. The Services act as a passive conduit for the archival, display, access, delivery, Purchase, and Sale of Photographs, digital images, information and other data. actionpics may, but has no obligation to, screen or monitor such images, information, data or other content or any of the activity occurring on the Services. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. All User Content is the sole responsibility of the person who originated such User Content. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ANY TRANSACTION MADE OVER THE SERVICES WILL BE BETWEEN YOU AND THE APPLICABLE USER OR OTHER INDIVIDUAL OR ENTITY AND THAT actionpics IS NOT AND WILL NOT BE A PARTY TO ANY SUCH TRANSACTION. YOU HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS actionpics AND THE actionpics INDEMNITEES AGAINST ANY CLAIM OR LOSS ASSOCIATED WITH ANY TRANSACTION RELATING TO YOUR POSTED CONTENT OR YOUR USE OF THE SERVICES.
    2. We have no special relationship with or fiduciary duty to you. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
  14. Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, Photographs or otherwise from your User Content, violation of these Terms, or infringement by you, or any third party using your Account or identity in the Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
  16. Modification. In an effort to deliver the best service experience possible, we are constantly changing our Services. We reserve the right, in our sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the Services (such as the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may stop providing specific features entirely, or introduce new limits to features, at any time. We know that Users use and rely on many different actionpics features, so if we discontinue a feature, where reasonably possible, we will give you reasonable advance notice. Your continued use of the Services following notification of any changes to these Terms or features constitutes acceptance of those changes.