Terms of Service

Terms of Service

The terms and conditions stated herein (collectively, the "Agreement") constitute a legal agreement between you and Color Space (the "Company" or “We”). In order to use the website, you must agree to the terms and conditions that are set out below. You further acknowledge and agree that you have read and understand the Company’s Privacy Policy available at https://colorspace.co.za/page/privacy (the “Privacy Policy”). The Privacy Policy, which applies to your use of the website, is hereby incorporated into this agreement.

1. Defined Terms

Overview

“images” means photos, pictures, images, graphics and similar items that are uploaded on the website.

"User" means a person who accesses the website and pays to use the images.

“Website” means www.colorspace.co.za.

The website is intended to be a site where Color Space and contributors can upload images, and whose images can then be copied, reproduced, modified and used (for commercial and editorial purposes) by users. The use of such images in any way is at each user’s own risk, we do our best to gather the proper documents for the images, so if questions of photo releases and/or location releases arise, please contact us on info@colorspace.co.za.

Representations and Warranties by User

By using the website, you expressly represent and warrant that you are legally entitled to enter into this agreement. If you reside in a jurisdiction which restricts the use of the website because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the website. Without limiting the foregoing, the website is not available to persons under the age of 18. By using the website, you represent and warrant that you are at least 18 years old. By using the website, you represent and warrant that you have the right, authority and capacity to

enter into this agreement and to abide by the terms and conditions of this agreement. When using the website, you agree to comply with all applicable laws of the country, province and city in which you are present while using the website.

By using the website, you agree that while each individual image on the website may be used commercially, the presentation and collection of these images is copyrighted by Color Space and the contributor, and therefore may not be used, altered or copied in any manner.

By using the website, you agree that:

You will only use the website and the images therein for lawful purposes. You will not use the website or images therein for any illegal or immoral purposes, including but not limited to pornography, drug use, gambling or prostitution, or any other purpose reasonably likely to reflect negatively on the contributors and Color Space.

You will not use the website or images therein for sending or storing any unlawful material or for fraudulent purposes.

You will not use the website to send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights and material that could be considered as sexual or psychological harassment or of a discriminatory nature;

You will not impair the proper operation of the website.

You will not try to harm the website or Color Space in any way whatsoever.

You will not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the website in any way, save as permitted herein; (ii) modify or make derivative works based upon the website; (iii) create internet "links" to, or "frame" or "mirror" the website on any other server or wireless or internet-based device; (iv) reverse engineer the website, or access the website in order to (a) build a competitive product or service, (b) build a product using similar ideas, features or functions of the website, or (c) copy any ideas, features or functions of the website, including without limitation the presentation of the

images, or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the website.

You will not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the website or the data contained therein; or (iv) attempt to gain or to permit others to gain unauthorised access to the website or its related systems or networks.

You will respect the website and other users when using the website. When submitting images to or otherwise using the website, you agree not to post or transmit to or from the website: (i) any unlawful, hateful, racially or ethnically offensive, threatening, libellous, defamatory, obscene, pornographic, or other material or images that would violate rights of publicity and/or privacy or that would violate any law; (ii) any commercial material or images (including, but not limited to, solicitation of funds, advertising, or marketing of any good or services); (iii) any material or images that infringes, misappropriates or violates any third party rights, including but not limited to copyright, trademark, patent right or other proprietary right of any third party; (v) any falsehoods or misrepresentations that could damage us, our users or any third party; (vi) any private information concerning another person, such as their address, phone number, email address, and similar information without their permission; (vii) anything which impersonates another person or represents yourself as affiliated with us, our staff or other industry professionals; (viii) anything which solicits a user's password or other account information; (ix) anything which harvests user names, addresses, or email addresses for any purpose; and (v) any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems. The above list is an example only and is not intended to be complete or exclusive.

You are solely responsible for all images that you make available through the website, should you choose under your own volition to contribute. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all images that you make available through the website or you have all rights, licenses, consents and releases that are necessary to grant to Color Space the rights in such images, as contemplated under this agreement; and (ii) neither the images nor your posting, uploading, publication, submission or transmittal of the images or Color Space’s (or other users) use of the images (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. Further, you do hereby acknowledge that all images may be viewed, used, reproduced, modified or otherwise dealt with by all users.

You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of images to the website.

If you believe that any images infringe any copyright that you own or control, please contact us immediately at info@colorspace.co.za.

Color Space will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Color Space may involve and cooperate with law enforcement authorities in prosecuting users who violate this agreement. You acknowledge that Color Space has no obligation to monitor your access to or use of the website or images or to review or edit any images, but has the right to do so for the purpose of operating the website, to ensure your compliance with this agreement, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Color Space reserves the right, at any time and without prior notice, to remove or disable access to any images that Color Space, at its sole discretion, considers to be in violation of this agreement or otherwise harmful to the website.

2. Restrictions and Copyright Policy

License granted by User

No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Color Space or its licensors.

Notwithstanding any other provision herein, please be aware that by submitting images to the website, you grant Color Space a non-exclusive, worldwide, royalty-free, perpetual, transferable, irrevocable and fully sub- licensable right to use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such images throughout the world in any media, now known or hereafter devised, with or without the name you used to make such submission of images. We have no obligation to publish your images; we reserve the right in our absolute discretion to remove or alter any images.

If you do not agree to these terms and conditions, please do not upload any images to the website.

3. Copyright Policy

Payment Terms

Intellectual Property Ownership

Color Space respects copyright law and expects its users to do the same. It is Color Space’s policy, when it becomes aware, to terminate in appropriate circumstances users or other account holders who infringe or are believed to be infringing the rights of copyright holders.

Any fees that Color Space may charge you for the use of the images are due immediately.

Please note that upon your contribution of any number of images, you agree to a royalty fee of 23% (non-exclusive) and 38% (exclusive author) for each successful download transferrable to you on the 15th of each month.

Color Space and its licensors shall own all rights, title and interest, including all related intellectual property rights, in and to the website and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the website (collectively “Feedback”). You are not required to provide any feedback to Color Space. To the extent you do provide any Feedback to Color Space, you agree to assign and hereby do assign to Color Space all right, title and interest in and to such Feedback and agree that Color Space may freely utilise such Feedback without compensation to you. This agreement is not a sale and does not convey to you any rights of ownership in or related to the website, or any intellectual property rights owned by Color Space. Color Space’s name, Color Space’s logo, and the product names associated with the website are trademarks of Color Space or third parties, and no right or license is granted to use them.

4. Third Party Interactions

During use of the website, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the website. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Color Space and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction, services or promotion between you and any such third party. Color Space does not endorse any sites on the internet that are linked through the website, and in no event shall Color Space or its licensors be responsible for any images, products, services or other materials on or available from such sites or third party providers. Color Space provides the website to you pursuant to the terms and conditions of this agreement. You recognise, however, that certain third party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and Color Space disclaims any and all responsibility or liability arising from such agreements between you and the third party providers.

Color Space may rely on third party advertising and marketing supplied through the website and other mechanisms to subsidise the website. By agreeing to these terms and conditions, you agree to receive such advertising and marketing. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the website.

5. Indemnification

By entering into this agreement and using the website, you agree that you shall defend, indemnify and hold Color Space, its licensors, and each of their parent organisations, subsidiaries, affiliates, officers, directors, users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (a) your violation or breach of any term of this agreement or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, or (c) your use or misuse of the website, except in each case solely to the extent any of the foregoing arises directly from the gross negligence or wilful misconduct of Color Space.

6. Disclaimer of Warranties

COLOR SPACE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SAFETY, ACCURACY OR COMPLETENESS OF THE WEBSITE. COLOR SPACE DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE WEBSITE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF THE WEBSITE, AS WELL AS ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (F) THE WEBSITE OR THE SERVER(S) THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WEBSITE IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COLOR SPACE. COLOR SPACE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE WEBSITE, AS WELL AS ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE WEBSITE. COLOR SPACE DOES NOT VERIFY THE OWNERSHIP OR INTELLECTUAL PROPERTY RIGHTS OF THE PICTURES, NOR HOW ANY USER MAKES USE OF THE PICTURES, AND SHALL HAVE NO LIABILITY RELATING THERETO. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE WEBSITE, THE IMAGES AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW. CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

7. Internet Delays

Limitation of Liability

THE WEBSITE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COLOR SPACE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES OF WHATSOEVER NATURE RESULTING FROM SUCH PROBLEMS.

IN NO EVENT SHALL COLOR SPACE OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF (OR INABILITY TO USE) THE WEBSITE OR WITH RESPECT TO THE IMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO COLOR SPACE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR THE AMOUNT OF ONE HUNDRED AND FIFTY RAND (R150), WHICHEVER IS GREATER. IN NO EVENT SHALL COLOR SPACE OR ITS LICENSORS BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). COLOR SPACE AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE WEBSITE OR THE PICTURES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE WEBSITE, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON OR WITHIN THE WEBSITE.

THE FOREGOING EXCLUSIONS SHALL APPLY EVEN IF COLOR SPACE AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING THE WEBSITE (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH YOU. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY USERS OR IMAGES AND YOU EXPRESSLY WAIVE AND RELEASE COLOR SPACE AND ITS LICENSORS, TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE WEBSITE, OR IN ANY WAY RELATED TO THE THIRD PARTIES AND TO THE IMAGES INTRODUCED TO YOU BY THE WEBSITE. YOU UNDERSTAND THAT BY USING THE WEBSITE, YOU MAY BE EXPOSED TO IMAGES THAT IS POTENTIALLY OFFENSIVE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE WEBSITE AT YOUR OWN RISK.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, COLOR SPACE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8. Notice

Color Space may give notice by means of email to your email address on record in Color Space's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Color Space's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice, and address any complaint or claim to Color Space (such notice, complaint or claim shall be deemed given when received by Color Space) at any time by means of email to info@colorspace.co.za.

9. Assignment

This agreement may not be assigned by you (whether in whole or in part) without the prior written approval of Color Space. This agreement may be assigned without your consent (in whole or in part) by Color Space, including, without limiting the foregoing, to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.

10. Controlling Law and Jurisdiction

General. This agreement and any action related thereto will be governed by the laws of South Africa without regard to its conflict of laws provisions. Each of the parties hereto waives any objection to jurisdiction and venue in such courts. However, in the event of the actual or threatened infringement, misappropriation or violation of Color Space’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, Color Space may, at its discretion, institute legal proceedings in any jurisdiction (s) which is (are) deemed necessary or advisable.

Arbitration. You and Color Space agree that any dispute, claim or controversy arising out of or relating to this agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the website (collectively, "Disputes") will be settled exclusively by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you are waiving the right to participate as a plaintiff in any purported class action or representative proceeding. Further, unless both you and Color Space otherwise agree in writing, the arbitrators may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of this agreement.

11. Termination

You agree that Color Space, in its sole discretion and for any or no reason, may terminate any member or customer account (or any part thereof) you may have with Color Space or your use of the website, and remove and discard all or any part of your account or any of your images, at any time. Color Space may also in its sole discretion and at any time discontinue providing access to the website, or any part thereof, with or without notice. You agree that any termination of your access to the website or any account you may have or portion thereof may be effected without prior notice, and you agree that Color Space shall not be liable to you. These remedies are in addition to any other remedies Color Space may have at law or in equity.

You may terminate this agreement at any time by ceasing all use of the website and requesting Color Space to cancel your account (if any), and remove any and all images you may have contributed up to the time of termination, via email sent to info@colorspace.co.za. Color Space is not liable in any way for the continued prorogation of any images contributed up to the time of termination, and/or appropriated by any users before the time of termination.

12. General

No joint venture, partnership, employment, or agency relationship exists between you, Color Space or any third party provider as a result of this agreement or use of the website. If any provision of the agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of Color Space to enforce any right or provision in this agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Color Space in writing. This agreement comprises the entire agreement between you and Color Space and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.