Member’s Terms and Conditions (“Terms”)
Welcome to the Harvey Norman PhotoCentre Online photo service (“Service”).
(a) By registering as a member of the Service, or, accessing or using this Service, you agree to be bound by:
(i) the Terms and Conditions which are set out below;
(ii) our Returns and Refunds Policy, a copy of which is available here and which is incorporated here by reference; and
(b) These documents constitute the entire agreement between us with respect to the use of this Service, the uploading and submission by you of Images and Content to this Service, the ordering of Products by you and the production and delivery of those Products in fulfillment of those orders.
(c) These Terms may be updated or changed from time to time and you should review them periodically.
(d) Please read these Terms carefully. You must comply with these Terms to access or use this Service. By accessing or using this Service, you accept these Terms and agree to be legally bound and subject to them.
(e) The enterprise carrying on business at www.harveynormanphotos.com.au (“Website”) under the name or style including the words “Harvey Norman” and “Harvey Norman PhotoCentre Online” is operated by Beauforda Pty Ltd ACN 003 903 991 (referred to as “our”, “us” and “we”), pursuant to a franchise granted by Harvey Norman Holdings Limited or its related bodies corporate (“Harvey Norman”) and a license granted by Harvey Norman or its related bodies corporate to trade as “Harvey Norman PhotoCentre Online”.
(f) Acceptance of these Terms creates a binding legal agreement between you and us that you will comply with these Terms and use this Service only in a manner consistent with these Terms. If you do not agree with these Terms, do not access this Service or use any of its services.
(g) The Service consists of two parts. One part contains information about products, including prices and promotions, and offers made by us, which part is published by us utilising materials provided by us or our third parties. The other part allows you to place orders for product and make payment, and is maintained and hosted by FUJIFILM Australia Pty Ltd (“FUJIFILM Australia”) by utilising software (“Software”) licensed to it by Whitech Pty Ltd and materials provided to them by us or our third parties.
2. Offers and Raincheck Policy
(a) Any offers made by us in the Service must be read subject to these Terms.
(b) Each enterprise carrying on retail business under any name or style including the words “Harvey Norman” or “Harvey Norman PhotoCentre” in any Harvey Norman Complex (“Complex”) located in Australia is operated by an independent franchisee pursuant to a franchise granted by another related body corporate of Harvey Norman (“Other Franchisee”).
(c) Each of Harvey Norman, each related body corporate of Harvey Norman and each Other Franchisee, does not publish, make, or authorise any offer or representation by this website.
(d) We will offer each item of the goods and/or services described in this website (“Offer Goods”) for sale until a specified date or until sold, whichever first occurs (“Offer Period”) at not greater than the price specified in the website for that item (“Offer Price”), via the Service, subject to these Terms.
(e) Images of goods published in this website without any advertised price beside that image are not offered for sale. Photographs are for illustrative purposes only and may vary from products depicted or described. Each published saving in respect of an item is by reference to the recommended retail price of the manufacturer or the normal ticketed price charged by us. Prices for items of Offer Goods will vary from prices offered or charged by each Other Franchisee at any Complex for equivalent goods. Each of Harvey Norman, each related body corporate of Harvey Norman and us expressly do not represent that any item of Offer Goods will be offered by or available from any Other Franchisee or at any Complex at the Offer Price, or at all.
(f) If we sell out of, or are temporarily out of stock of any item of Offer Goods, during the Offer Period, then we will offer each person who requests supply of that item during the Offer Period, a raincheck, so that the person may purchase, from us, either, later a product the same as that item at not greater than the Offer Price, or an alternative product with similar features with equivalent or a higher value, at a price for that item not greater than an amount equivalent to the Offer Price.
(g) Prices displayed on Harvey Norman PhotoCentre Online are in Australian dollars. Prices may not include delivery charges. Prices are subject to change by us. We reserve the right to correct any errors or misprints and have no responsibility if Products or the Service are unavailable from Harvey Norman PhotoCentre Online.
(a) You will become a member of the Service once you complete a membership application on Harvey Norman PhotoCentre Online by providing to us your full name, residential address, telephone number, nominated password and email address (which must be a genuine email address) and after you receive an email confirming your membership.
(b) Once you are a member of the Service, we will set up a membership account for you and you may use the photo services described on Harvey Norman PhotoCentre Online. We only permit one membership for each genuine email address. Your email address will be used for sending you all notices.
4. Your Password and Membership Account
(a) You are responsible for maintaining the confidentiality of your password and your membership account details. You must notify us immediately if you become aware of any breach of security or any unauthorised use of your membership account. You are solely responsible for the activity which occurs on your membership account. Although we will not be liable for your losses caused by any unauthorised use of your account unless we are at fault (in which case clause 15 applies). However, you may be liable for the losses of us or others due to such unauthorised use.
(b) If you forget your password you may request that we email you your password by clicking on the relevant link on Harvey Norman PhotoCentre Online and we will email your password to you. If you no longer have access to your email account, or if you need to update your membership details, you may contact our Customer Support Team.
5. Termination of Membership
We reserve the right to terminate the membership of any member by notice as stated in these Terms. We also reserve the right to terminate by notice the membership of any member who breaches any of these Terms and Conditions and does not comply with our reasonable instructions to remedy the breach. We will give a member at least 2 days’ notice that we are terminating that member’s membership.
You may terminate your membership at any time by contacting our customer service team at CONTACT US.
If your membership is terminated, you will no longer be able to access the Service and we may at our discretion remove your materials from the Service. You are responsible for obtaining any copies of your materials before termination takes effect. We are not responsible for any loss of data resulting from removal of or deletion of Content.
If we terminate your membership we may at our discretion fulfill or cancel any order accepted by us prior to the date of termination. If we cancel an order we will refund any amount already paid.
6. Photo Storage
(a) The Service’s photo storage facility is known as My Photos.
(b) When you become a member of this Service you receive free storage of images for your photo albums for 12 months’ from the date of activation. Thereafter, a member will maintain free storage for their albums provided that a verified print order is made at least once every 12 months either by the member themselves or by someone with whom the member has shared their albums. From the date each verified order is received, the membership will be credited with free storage for the following 12 months i.e., the 12 months free storage period re-starts with each print order. The maximum period of free storage at any point in time is 12 months.
(c) At the end of the free storage period we may by giving you not less than 2 days’ notice, remove and/or delete your Content.
(d) We are not responsible for any loss of data resulting from removal and/or deletion of Content.
7. Children Not to Order Products or Submit Images
(a) We are particularly concerned to preserve and protect the privacy of children and their personal information.
(b) If you are under the age of 13 years, you must not apply to become a member of the service. Please do not attempt to submit any photos or other information about yourself to us (such as your name, address, telephone number or email address) or order any Products from us.
(c) If you are aged from 13 to 16, you should obtain permission from your parents or guardians before sending any photos or other information about yourself to us or ordering any Products.
(d) We reserve the right to terminate your membership for breach on at least 2 days’ notice to you if you do not comply with this clause 7.
8. Your Copyright
(a) Generally under copyright laws the owner of the copyright in images or photographs is the person who created the images or took the photographs. You represent and warrant to us that you are the owner of the copyright or have the express permission of the owner of the copyright in the images or photographs which you submit to the Service. We reserve the right to terminate your membership for breach on at least two (2) days’ notice to you if this representation and warranty is incorrect.
(b) We claim no ownership rights in any Content you submit to the Service. Solely for the purpose of enabling your images or photographs to be uploaded and made available on the Service and to fulfill orders for Products made using your images and photograph, you grant to us and to our Agents and Contractors, a perpetual, worldwide, non-exclusive, transferable, royalty-free, copyright licence to copy, reproduce, display, modify, adapt or alter, transmit, communicate to the public and distribute any Content (including images or photographs) submitted by you to this Service in such manner as we and our Agents and Contractors consider reasonably necessary solely for the purpose of operation of the Service or incorporation of that image or photograph into that Product and fulfilling that Order.
(c) You agree that we and our Agents and Contractors cannot control the use of your Content (including images or photographs) by third parties and will not be held liable for any use, publication or copying of your images and photographs by any such third parties. You agree that you will not take any legal action or make any claim against us or our Agents and Contractors in respect of any such use, publication or copying by third parties.
9. Your Infringement of Copyright
(a) We respect the intellectual property rights of others. Subject to clause 9(b), if we receive a written complaint alleging copyright infringement by a member of this Service, we may refer the complaint to the member concerned. It is the member’s responsibility to resolve any such complaint. If within seven (7) days of the date on which the matter was referred to the member (the “Referral Date”) we do not receive from the person making the complaint advice in writing that the complaint has been satisfactorily resolved, we reserve the right, in our absolute discretion, on at least 2 days’ notice to the member to suspend the membership of the member who allegedly infringed copyright until such time as the matter is resolved. If we have not been notified within sixty (60) days of the Referral Date that the matter has been satisfactorily resolved, we reserve the right, in our absolute discretion, to terminate for breach on at least two (2) days’ notice to you the membership of the member who allegedly infringed copyright.
(b) The procedures included in clause 9 (a) may be adopted by us in our sole and absolute discretion and nothing in clause 9(a) limits our rights under these Terms.
(c) If any person makes any claim against us or our Agents and Contractors, claiming that any of the Content you submit to the Service, or any use of them, infringes any copyright, or other intellectual property or moral right of any person, company or entity, you indemnify us and our Agents and Contractors against all costs, claims, loss, damage, demands and expenses (including all reasonable legal costs, fees and expenses) arising directly or indirectly out of such claim.
10. Intellectual Property Rights
(a) Any intellectual property rights, including graphics, logos, trademarks, design, text, icons, the arrangement of them, sound recordings and all software relating to Harvey Norman PhotoCentre Online, are owned by us, or in some cases, a related body corporate or third party. These intellectual property rights are protected by Australian and international laws.
(b) Nothing contained on Harvey Norman PhotoCentre Online is to be interpreted as a recommendation to use any information on Harvey Norman PhotoCentre Online in a manner which infringes the intellectual property rights of any person, company or entity. We make no representations or warranties that your use of the information on Harvey Norman PhotoCentre Online will not infringe such intellectual property rights.
(c) You should assume that all of the content made available to you through this Service, including photographic images, is owned by third parties and is protected by copyright or other proprietary rights. You may view Harvey Norman PhotoCentre Online and its contents for personal and non commercial use only and subject to the Copyright Act 1968 (Cth) and similar legislation, you may not in any form or by any means reproduce, modify, distribute, store, transmit, publish or display within another website or create derivative works from any part of Harvey Norman PhotoCentre Online or commercialise any information obtained from any part of Harvey Norman PhotoCentre Online without our prior written permission or, in the case of third party material, from the owner of the copyright in that material.
(d) Any trademarks, trade names or logos displayed on this Service are the property of their respective owners and must not be used in any manner without the prior written consent of the owner.
(e) You agree not to alter or remove any information, consent or other proprietary notice or legend on any of the Content, unless you are the owner of the intellectual property rights in that Content.
(f) We reserve the right to terminate your membership for breach on at least 2 days’ notice to you if you breach this clause 10.
11. Links to Third Party Websites
12. Secure Data and Transmissions
Given the nature of the internet, we cannot guarantee that any data transmission is totally secure, free from viruses, fault or other conditions which could damage or interfere with your computer systems and we do not warrant that your access to Harvey Norman PhotoCentre Online will be uninterrupted, error free or that any defects will be corrected. Whilst we take precautions to protect information, we do not warrant and cannot ensure the security of any Content or information you transmit to us. You therefore transmit to the Service and Harvey Norman PhotoCentre Online at your own risk. However, once we receive your transmission, we, or our Agents and Contractors, will take reasonable steps to preserve its security. If you become aware of any problems with the security of the Service or Harvey Norman PhotoCentre Online, please contact our Customer Support Team immediately.
You must take your own precautions to ensure that the process which you use to access the Service or Harvey Norman PhotoCentre Online does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system. For the avoidance of doubt, we do not accept responsibility for any interference or damage to your own computer system which arises in connection with your use of the Service, Harvey Norman PhotoCentre Online or any linked website.
13. Amendment to Terms
(a) We reserve the right to change these Terms at any time.
(b) Your continued use of Harvey Norman PhotoCentre Online will represent an agreement by you to be bound by the Terms as amended.
(c) The changed Terms and Conditions will apply to the Service and any order you place from the effective date of the change.
(d) Notice of changes to these Terms and Conditions and their effective date will be published on our website www.harveynormanphotos.com.au. We recommend you check the website for changes each time you use the Service and before placing any order. If you do not agree with a change to these Terms and Conditions you may terminate your membership at any time as set out in clause 5.
(e) We are not responsible for any costs incurred by a Member or user of this Service as a consequence of these Terms changing. Should we choose to provide you with notice of changes to these Terms, you agree to receive email notification of the changes from us or our Agent or Contractor. We do not promise that we will provide you with email notice of any change.
14. Materials and Content Not Permitted on this Service
(a) Any Content submitted by you to this Service is subject to our review. While we reserve the right to review, monitor, remove or delete Content, we are under no obligation to do so.
(b) We reserve the right at our sole and absolute discretion to restrict access to this Service, refuse to display Content on this Service, remove Content from this Service or refuse to use any Content submitted by you for use in the production of a Product if we consider it necessary or appropriate, including if we receive a written complaint alleging copyright infringement or if that Content is deemed to be objectionable by us, potentially infringes any third party rights or is considered by us to be contrary to applicable laws unsuitable for use in the production of a Product. You agree to promptly report any suspicious or unauthorised use of this Service to us.
(c) Any perceived violations of laws including laws relating to child pornography, child abuse and animal abuse will be reported by us to law enforcement authorities if in our sole judgment any Content is in violation of applicable laws.
(d) Without limiting the above in any way, you are not permitted to post, upload, email, publish, transmit or otherwise make available any Content which:
(i) is, or we believe is, offensive, personally offensive, defamatory, abusive, obscene, upsetting, menacing, threatening, harassing, pornographic, of an adult or sexual nature or, in any way unsuitable for persons under the age of 18 years;
(ii) is illegal under any law or regulation at any place where Content is posted or uploaded from and / or viewed, and / or received, or infringes any industry code of conduct;
(iii) in the case of Products ordered through this Service, is illegal under any law or regulation at any place where those Products are to be delivered;
(iv) is Content or material that is copyrighted or used without the express permission of the owner or which infringes the intellectual property rights of any person; or
(v) in our opinion reflects badly on the Service.
(e) You are not permitted to use the Service:
(i) to engage in any activities in such a manner as to expose us and our Agents and Contractors, to liability or adversely affecting the name, reputation or business of us and our Agents and Contractors;
(ii) to do any act that may damage or interfere with the Service network or systems or cause the quality of the Service to be impaired;
(iii) to commit a crime or in the course of committing a crime or for an unlawful purpose to do any act that may damage the network or systems or cause the quality of the Service to be impaired.
(f) Improper use of the Service will be regarded as a serious breach of these Terms and will, at our absolute discretion, result in termination of your membership account. We reserve the right to terminate your membership for breach on at least 2 days’ notice to you if you:
(i) Submit to the Service any image or photograph that we deem to be to be objectionable or contrary to applicable laws; or
(ii) Use the Service in a manner not permitted by this clause 14.
15. Our Liability to You
(a) This clause is not intended to exclude or limit any rights or remedies applying to supply of the Service or the Products which you may have under the Trade Practices Act 1974 (Cth), Competition and Consumer Act 2010 (Cth) or equivalent Commonwealth, State or Territory Laws.
(b) Subject to clause 15(c) of these Terms, the Service and the Products are provided “as is” and no warranties are given by us except to the extent expressly set out in these Terms .
(c) Clause 15 of these Terms does not exclude any commitments given by us in our Photo Gifts Returns and Refunds Policy (which may be accessed on this Service) or any warranties or terms and conditions which by law are not able to be excluded.
(d) Your access of or use of the Service is at your own risk. You should take appropriate steps to back-up materials submitted by you to the Service and to protect your computer against any damage that could result from your access to or use of the Service. The Service, the uploading of Content to the Service, the transfer of any Content to or from third party websites, the transfer of any Content for use in the production of Products and the ordering of Products by use of the Service may not be error free or uninterrupted. We do not give any commitment in relation to the security, reliability, timeliness and performance of the Service and any of those other functions. To the extent permitted by law, we and our Agents and Contractors are not responsible for interruption of the Service, linkage to any third party sites, damage to your computer, damage to other property or loss of Content or other data resulting from your access to or use of this Service.
(e) If due to negligence or other fault on our part:
(i) loss, damage or mishandling of your digital image or other Content or the Product ordered by you occurs; or
(ii) unauthorised access is gained or misuse is made of an image or other Content by any third party,
(iii) our liability will be limited, at our option if our Photo Gifts Returns and Refunds Policy applies, to providing you with a remedy as set out in that policy. In all other cases, our liability will be limited at our option to:
A. uploading that image or other Content to the Service again;
B. using that image or other Content to produce the Product again for you (where the loss, damage or mishandling relates to the production or delivery of Products ordered by you); or
C. refunding any money paid by you to us for producing the Product through the use of that image or other Content.
To the extent permitted by law, this is your only remedy for any loss, damage or mishandling.
(f) Except as expressly provided in these Terms, to the fullest extent allowed by the law, we and our Agents and Contractors will not be liable for loss or damage of any kind arising out of your access to or use of this Service, the uploading of images or other Content by you or the ordering of Products by you.
(g) You agree to pay to us the amount of any and all claims, damages, obligations, losses, liabilities, costs or expenses (including but not limited to solicitors costs) we incur arising from:
(i) your breach of any term of these Terms and Conditions;
(ii) your breach of any third party right, including without limitation any copyright, property, or privacy right or privacy law; or
(iii) any claim that any of your images or any Content submitted to the Service caused damage to a third party.
Your obligation to pay us under this clause will survive these Terms, termination of your membership, your use of the Service and the ordering, production and delivery to you of any Products.
16. Orders for Products
(a) Once an order for Products is placed by you through this Service, that order becomes binding.
(b) Due to the personalised nature of the Products ordered through this Service, once made, any order for Products placed by you through this Service normally cannot be cancelled or adjusted. However, if you believe you have placed an order in error, please contact us and we will assess whether in the circumstances we are able to comply with your request. We cannot promise that we will be able to do so.
(c) We recommend you carefully preview the items to be ordered by you and the choices made by you for their production before ordering, and ensure you are satisfied before adding them to your Shopping Cart. A tick box will prompt you to confirm this at the time you place your items into your shopping cart.
We will ensure that within 5 Business Days of the receipt by us of your order for Products, that order is provided by us to Australia Post or another third party carrier to deliver to you. Ordinarily, delivery of an order to you by Australia Post or another third party carrier may be expected within 10 Business Days after the receipt by us of your order. However we cannot accept responsibility for delivery failures or delays by Australia Post or by other third party carriers and make no promise to you that orders for Products will be delivered to you within that period. Please refer to clause 15 (Our Liability to You).
18. Order Enquiries
If you have any query about the progress of your order for any Products, please contact us and quote your order number (you will receive this number after a successful transaction at this Service).
19. Reproduction of Colours, Uploading of Images and Your Responsibilities
(a) Reasonable efforts are made to display the colours of Products (including colours to be reproduced from images uploaded by you) that appear online on this Service as accurately as possible, however the colours displayed to you on this Service will depend on your monitor and the settings of your monitor.
(b) Before confirming an order for a Product, it is your responsibility to edit any images uploaded by you for use in that Product including cropping the image to your requirements and ensuring the image meets the degree of resolution required by you or the minimum resolution recommended for that Product.
(c) We will not be liable to compensate you, give you a refund or to reproduce any Products:
(i) simply because the actual colours of Products provided to you or their tones differ to the colours of those Products as displayed to you on this Service (unless this is due to fault on the part of us or our Agents and Contractors and suppliers in connection with the production of those Products); or
(ii) poor quality prints or images incorporated in Products as a result of improper cropping by you or the failure of the image uploaded by you to meet the minimum resolution recommended for that Product.
20. Damaged or Faulty Products and our Returns and Refunds Policy
(a) If any Product ordered by you arrives damaged,, is not of merchantable quality or the problem has occurred in the production of your order, you may have:
(i) rights under our Returns and Refunds Policy to have the Product repaired or replaced or to receive a refund of the price paid by you for the Product; and
(ii) additional legal rights and remedies in Australia under the Trade Practices Act 1974, the Competition and Consumer Act 2010 and other rights which vary in each State, or under other consumer laws applying in each State and Territory. Nothing contained in our Photo Gifts Returns and Refunds Policy is intended to exclude or limit those rights and remedies.
(b) Our Returns and Refunds Policy contains details of how to contact us to address a possible claim and to sort out arrangements for the possible return of the Product that is the subject of a claim. Please view our Photo Gifts Returns and Refunds Policy on this Service by Clicking Here.
(c) If your order arrived damaged, please email our customer service team at CONTACT US and quote your order number (you will receive this number after a successful transaction made through this Service). We will let you know whether you need to return the item to us.
(b) We and our Agents and Contractors, may collect your personal information, including your name, address, billing and delivery information, email address, and credit card details.
(c) We and our Agents and Contractors, will use this information to provide the Products or other service requested by you, produce those Products or provide those services, fulfil and follow up on your orders for Products or services, respond to queries regarding orders and Products and services and create and maintain your account. We and our Agents and Contractors may use this information to provide you with information on your account and the Products or services you purchased from this Service. We may also send you promotional information and/or special offers about products and services that we think may be of interest to you, unless you indicate that you do not wish to receive such promotional information.
22. Force Majeure
Our obligations to you under these Terms or under any Order will be suspended for the time and to the extent that we, or our third party service providers, are prevented from or delayed in complying with our obligations by any event or circumstance or combination of events or circumstances which are beyond our reasonable control, including but not limited to, failure of or interruption in the provision of essential services such as electricity supply, bank payment systems or postal deliveries.
23. Governing Law
(a) These Terms will be governed by the laws of New South Wales, Australia and you submit to the jurisdiction of the Courts of New South Wales, Australia. If any provision of these Terms is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of these Terms, which will continue in full force and effect.
(b) If you access Harvey Norman PhotoCentre Online in a jurisdiction other than New South Wales, Australia, you are responsible for compliance with the laws of that jurisdiction, to the extent that they apply. We make no representations that the content of Harvey Norman PhotoCentre Online complies with the laws of any country outside Australia.
If any court of competent jurisdiction finds any provision or part thereof of these Terms to be illegal, invalid or unenforceable that provision or part thereof shall be severed from these Terms and the remaining terms and provisions of these Terms will remain in force and constitute the agreement between you and us.
The failure by us to enforce any right or provision of these Terms will not restrict us from enforcing it now or in the future.
In these Terms the following expressions will have the following meanings unless otherwise stated:
Agents and Contractors means any agents, contractors and sub-contractors of us, including FUJIFILM Australia, who are engaged in the creation, provision or maintenance of the Service or in the production of Products and the fulfillment of orders for Products made through the Service.
Business Day means any day other than a Saturday, Sunday or public holiday in the State of New South Wales, Australia.
Content means any images, photographs or other materials or content submitted or uploaded to this Service.
Customer Support Team means Harvey Norman PhotoCentre Online, c/o FUJIFILM Australia Pty Ltd, Harvey Norman PhotoCentre Online Customer Support, PO Box 57, Brookvale, NSW 2100, Australia and may be contacted on 1300 615 041.
FUJIFILM Australia means FUJIFILM Australia Pty Ltd ABN 80 000 064 433.
Harvey Norman PhotoCentre Online means the whole or any part of the web pages located on the Website (including but not limited to any elements of design, underlying code, text, sounds, graphics, animated elements or any other content).
Order means any verified print order you make via your use of the Service for the production of a Product.
Product means any printed photo or photo gift or other product that is offered for sale and may be ordered through this Service.
“we”, “our” or “us” means Beauforda Pty Ltd ACN 003 903 991.
Harvey Norman PhotoCentre Online Terms Version 3.0 December 2010