Terms & Conditions
Member’s Terms and Conditions (“Terms”)
Welcome to the Harvey Norman PhotoCentre Online photo service (“Service”).
Products purchased by you by your use of the Service are sold to you by Harvey Norman Stores (NZ) Pty Limited ACN 072 951 547 as agent for FUJIFILM NZ Limited (NZ Company No. 49535) (referred to as “our”, “us” and “we”) and all services and communications referred to in these Terms or provided to you as part of the Service, are provided by us or our third party service providers, including FUJIFILM Australia Pty Ltd ABN 80 000 064 433 (“FUJIFILM”).
These Terms govern your use of the Service and your purchase of any Products from us.
Harvey Norman Stores (NZ) Pty Limited ACN 072 951 547 is the registered owner of the Website and FUJIFILM designs, develops, operates and maintains the application that hosts Harvey Norman PhotoCentre Online on our behalf by utilising software (“Software”) developed licensed to it by Whitech Pty Ltd for FUJIFILM and materials provided to them by us or our third parties. The Software is licenced to us by FUJIFILM and your use of the Software as part of the Service is subject to the terms of a FUJIFILM End User Licence Agreement, the terms of which are specified in Appendix 1 (“EULA”). Your agreement to be bound by these Terms includes your agreement to be bound by the terms of the EULA.
You agree to be bound by these Terms when you register as a member of the Service, use the Service or purchase Product by your use of the Service. If you do not accept these Terms, then you will not be able to join as a member of this Service and you must refrain from using this Service.
2. Prices, Products and Services
Prices displayed on Harvey Norman PhotoCentre Online are in New Zealand 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.
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.
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.
As a member you will be entitled to free, unlimited storage of your Photos and Materials provided your membership remains active. As a new member, you will receive 365 days free storage from the date of activation of your membership account. Your membership account will remain active provided you make an Order at least once every 365 days. From the date each Order is received, your membership will be credited with free storage for a further 365 days. Maximum free storage at any point in time is 365 days.
4. Your Password and Membership Account
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.
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 Harvey Norman PhotoCentre Online Customer Support.
5. Termination and Deactivation of Membership
We reserve the right to terminate and/or deactivate your membership if you breach any of these Terms or you fail to maintain active participation of the Service. You may deactivate your membership account at any time by contacting Harvey Norman PhotoCentre Online Customer Support.
You will be given 30 days notice prior to your membership account being deactivated. In this 30 day period, you may make an Order to maintain an active membership. Where you do not make an Order in this 30 days period, we will, without further notice to you, terminate your membership, deactivate your membership account and/or permanently remove and delete your Photos and Materials. We will not be responsible to you or any third party for any loss you or any third party may suffer as a result of the Photos and Materials being permanently removed and/or deleted or otherwise.
6. Your Copyright
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 claim no ownership rights in any Photos and Materials you submit to the Service. You grant to us and to our third party service providers, a perpetual, worldwide, non-exclusive, transferable, royalty-free, copyright licence to copy, reproduce, display, modify, adapt or alter, transmit, and distribute your Photos and Materials for the purpose of allowing us to upload your Photos and Materials to Harvey Norman PhotoCentre Online and to provide the Service to you including but not limited to fulfilling your Orders,
Provided we comply with our obligations under these Terms, you warrant that you will not make any claim against us or our third party service suppliers, for any use, publication or copying of your Photos and Materials and you waive all rights of action or other claims you may have now or in the future against us in respect of any such use, publication or copying.
7. Your Infringement of Copyright
We respect the intellectual property rights of others. If we receive a complaint alleging that you have infringed copyright, we will refer the complaint to you for resolution. It will be your responsibility to resolve any such complaint. Should you not resolve the complaint satisfactorily and advise us, in writing, of the resolution within seven (7) days of the date we refer the complaint to you (the “Referral Date”), we reserve the right, in our absolute discretion, to suspend your membership until such time as the complaint is resolved. If you do not notify us within sixty (60) days of the Referral Date that the complaint has been satisfactorily resolved, we reserve the right, in our absolute discretion, to terminate your membership.
If any person makes any claim against us or our third party service suppliers, claiming that any of the Photos or Materials 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 third party service providers 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.
8. Other Copyright and Intellectual Property Rights
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 New Zealand and international laws. 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.
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.
You may view Harvey Norman PhotoCentre Online and its contents for personal and non commercial use only and subject to the Copyright Act 1994 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.
9. Amendment to Terms
We reserve the right to amend these Terms at any time without notice to you. Your continued use of Harvey Norman PhotoCentre Online will represent an agreement by you to be bound by the Terms as amended. We will not be held responsible for any costs incurred by you as a consequence of our amendment of these Terms. Should we choose to provide you with notice of alterations to these Terms, you agree to receive from us email notification of the alterations.
10. Infringing Photos and Materials and Improper Use
You acknowledge that any Photos and Materials submitted by you to the Service will be viewed by us and our third party service providers. We reserve the right at our absolute discretion to refuse to display and to remove Photos and Materials from the Service which we deem are contrary to your use of the Service.
You must not use the Service for any inappropriate activities such as, transmitting, retrieving or storing offensive materials (including photos, videos, audio or text), which are harassing, defamatory, discriminatory, infringing copyright, pornographic, illegal, not suitable for persons under the age of 18 years, a privacy violation or where we consider such activities reflect unfavourably on us, our third party service suppliers or the Service.
You acknowledge that if, in our absolute discretion, we consider your use of the Service is in violation of any laws, including without limitation, laws relating to child pornography and child or animal abuse, that we will report you to the appropriate law enforcement authority and you will have no claim against us for any loss or damage you suffer whatsoever as a result of your activities being reported to the appropriate law enforcement authority.
You must not do any act that may damage or interfere with the Service network or systems or cause the quality of the Service to be impaired or 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.
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.
11. Disclaimer of Warranty and Limitation of Liability
This clause is not intended to exclude or limit any rights which you may have under the Fair Trading Act 1986 or the Consumer Guarantees Act 1993.
To the extent permitted by law, the Service and all Products provided by us and our third party providers are provided “as is” and we make no warranties or representations of any kind, express or implied, in relation to any information, materials or services included on Harvey Norman PhotoCentre Online or to its availability, accuracy, functionality or performance, except as otherwise provided under any applicable law.
We do not accept responsibility and we disclaim liability for any loss, damage or injury, howsoever caused, which you may directly or indirectly suffer in connection with your use, or inability to use the Service or Harvey Norman PhotoCentre Online and we do not accept any responsibility for any such loss arising out of your use of, or reliance on, the Service, Harvey Norman PhotoCentre Online or the Products. This limitation includes, but is not limited to, consequential damages, interruption of business, loss of data, income or profit, loss of, or damage to property, and third party claims.
Where you suffer any loss or damage (including as a result of negligence or fault) as a result of our or our third party service provider’s mishandling of your Photos and Materials, you indemnify us, our third party service providers and their employees, agents or subcontractors from all damage, loss, penalty and expense, which arises out of or relates to your use of the Service or any damage you cause to the Service.
This indemnification includes without limitation, liability relating to copyright infringement, defamation, invasion of privacy, trade mark infringement and breaches of the Fair Trading Act 1986 of the Consumer Guarantees Act 1993 (to the extent allowed by law). Where your membership account is terminated, all disclaimers and limitations of liability in these Terms will survive.
Our liability or that of our third party service providers will be limited, at our option, to re-supplying your Order or to refunding to you any monies paid by you. This is your exclusive remedy for any loss, damage or mishandling.
We will use reasonable commercial efforts to dispatch your Order to you within five-seven (5-7) business days from receipt of your Order and payment. Where you request for your Order to be delivered to a non metropolitan, remote or international address, your Order may take greater than five -seven (5-7) business days to be delivered to you.
We do not accept responsibility for any delays caused by New Zealand Post or any other third party that we, or our third party service provider, may engage to deliver the Products to you.
Where your Order is received by you damaged, you must immediately contact Harvey Norman PhotoCentre Online Customer Support and quote your Order number (as shown on your invoice). At our sole discretion, we may ask you to return the Product to us in its original packaging (if possible) together with a copy of your Order and we may require you to provide proof of your identity.
We will not be liable if the damage, defect or fault arose as a result of misuse, neglect or mishandling of the Product by you or if you made a wrong decision. If we determine, in our reasonable discretion, that any Product was not genuinely damaged on arrival or faulty in its manufacture, we will return the Product to you at your cost. We will otherwise, at our discretion, replace the Product or refund any monies paid by you to us.
14. Product Quality
To the extent permitted by law, your use of the Service to produce a Product suitable to your needs and quality expectations is at your own risk.
You acknowledge that:
(a) a Product may require you to use creative and artistic skills and that the Product produced will be dependent on the quality of your creative and artistic skills, the quality, image size and photographic equipment used to create any Photos and Materials and your ability to use the Service to its full capacity;
(b) the colours, tones and borders in your Photos and Materials may be different from how they appear on your computer screen or in other digital or hard copy form;
(c) we will not modify, enhance and/or improve any Photos and Materials you provide to us prior to producing the Product.
You warrant that you will not make any claim against us or our third party product suppliers if you are disappointed with the design or quality of the Product, where such quality or design is beyond our reasonable control, including as a result of a technical fault included in the Software.
16. Secure Data and Viruses
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 Photos or Materials 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 third party service providers, 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 Harvey Norman PhotoCentre Online Customer Support 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.
17. 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.
18. Governing Law
These Terms will be governed by the laws of New Zealand and you submit to the jurisdiction of the Courts of New Zealand. 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.
If you access Harvey Norman PhotoCentre Online in a jurisdiction other than New Zealand, 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 New Zealand.
(1) The failure by us to enforce any of our rights or provision of these Terms will not constitute a waiver of the right or provision.
(2) These Terms constitute the entire agreement between us with respect to your use of the Service and your purchase of any Products from us.
(3) If any court of competent jurisdiction finds any provision or part of these Terms to be illegal, invalid or unenforceable that provision or part will be severed from these Terms and the remaining terms and provisions of these Terms will remain in force and constitute the agreement between us.
(4) Harvey Norman Holdings Limited (an Australian company) ACN 003 237 545 and its subsidiaries do not operate Harvey Norman stores and do not make any offers via Harvey Norman PhotoCentre Online.
In these Terms and Conditions the following expressions will have the following meanings unless otherwise stated:
“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).
“Harvey Norman PhotoCentre Online Customer Support” means Harvey Norman PhotoCentre Online, c/o FUJIFILM NZ Limited, Harvey Norman PhotoCentre Online Customer Support, PO Box 101-500, N.S.M.C Auckland and may be contacted on 0800258741
“Order” means any verified print order you make via your use of the Service for the production of a Product.
“Photos and Materials” means any image, photograph, photographic album or other materials you upload to your membership account or that you create and provide with any Order.
“Product” means any product purchased by you via your use of the Service.
“Website” means www.harveynormanphotos.co.nz
Harvey Norman PhotoCentre
Online Terms Version 1.0 December 2021
End User Licence Agreement – Imagine Software Platform
This End User Licence Agreement (EULA) is a legal agreement between you (you, your) and Harvey Norman Stores (NZ) Pty Limited (we, us or our) as agent for FUJIFILM NZ Limited (“Distributor”) and its Licensor (as defined below) in relation to your use of the Imagine service including all software, supporting infrastructure and associated services and documentation (Imagine Service). The Imagine Service is owned by FUJIFILM Australia Pty Ltd (ABN 80 000 064 433) (“Licensor”).
- 1. Grant and scope of licence
- 1.1 In consideration of the payment of any applicable licence fee (which is part of the price (if any) you pay us for this package), we hereby grant to you a non-exclusive, non-transferable licence to permit you to use the Imagine Service on the terms of this EULA.
- 1.2 You may use the Imagine Service for your personal purposes (if you are a consumer) or your internal business purposes (if you are a business) only.
- 2. Restrictions
- 2.1 Except as expressly set out in this EULA or to the extent permitted by any local law, you undertake not to:
- (a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Imagine Service in any form or media or by any means;
- (b) access all or any part of the Imagine Service in order to build a product or service which competes with the Imagine Service;
- (c) rent, lease, sub-license, loan, translate, merge, adapt, vary, distribute, display, modify or otherwise commercially exploit the Imagine Service;
- (d) make alterations to, or modifications of, the whole or any part of the Imagine Service nor permit the Imagine Service or any part of it to be combined with, or become incorporated in, any other programs;
- (e) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Imagine Service; or
- (f) provide, or otherwise make available, the Imagine Service in any form, in whole or in part to any person without prior written consent from us.
- 2.2 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Imagine Service and, in the event of any such unauthorised access or use, promptly notify us.
- 2.3 You shall keep a secure password for your use of the Imagine Service and you shall keep your password confidential.
- 2.4 You acknowledge that you will not post or transmit any materials on or via the Imagine Service that are unlawful, threatening, libellous, offensive, obscene, inflammatory, pornographic or which infringe any of the intellectual property rights of any third party, and neither we nor the Licensors accept any responsibility or liability for any such materials posted or transmitted by you.
- 3. Intellectual Property Rights
- 3.1 You acknowledge that:
- (a) the Imagine Service is owned by the Licensor;
- (b) all intellectual property rights in the Imagine Service remain with the Licensor, and you do not now and shall not have, own, or acquire in the future any copyright or any other intellectual property rights in the Imagine Service; and
- (c) the Imagine Service contains proprietary and confidential information of the Licensor.
- 3.2 The integrity of the Imagine Service is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Imagine Service are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
- 4. Services
- 4.1 You acknowledge that while we and the Licensor will use all reasonable endeavours to keep the Imagine Service available, neither we nor the Licensor are able to guarantee the availability, performance, quality or speed of the Imagine Service. You further acknowledge that the Imagine Service is not fault-free and you may experience limitations, interruptions, delays and/or access problems from time to time due to the performance of third parties over which we nor the Licensor have any control. As such, neither we nor the Licensor accept any responsibility or liability for any errors, delays or other problems experienced by you when using the Imagine Service.
- 4.2 To the fullest extent permitted by law and except for the warranties expressly set forth in this agreement, the imagine service is provided “as is” and we and the Licensor expressly disclaim any implied warranties and conditions, including any implied warranties of merchantability or fitness for a particular purpose, title or non-infringement, as well as any warranties that the software will be free of interruptions or errors.
- 4.3 We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under this agreement.
- 5. Your content and personal data
- 5.1 You shall own all right, title and interest in and to all of the content (including photographs) that you input and/or upload for the purpose of using the Imagine Service (“Personal Data”).
- 5.2 You acknowledge that you are solely responsible for preserving or making back-up copies of your Personal Data. The Imagine Service should not be used as the sole storage facility for content and neither we nor the Licensors accept any responsibility or liability for any of your Personal Data that is lost, damaged or destroyed.
- 5.3 Where, in the provision of the Imagine Service to you, we collect your personal data, we shall do so pursuant to the applicable data protection and privacy laws.
- 6. Indemnity and Limitation of liability
- 6.1 You shall indemnify us and the Licensor and hold us and the Licensor harmless from and against any and all losses, claims and damages, howsoever arising and whether direct or indirect, that are sustained or incurred by us or the Licensor and arise (whether in contract, warranty, tort or otherwise) from or in connection with your use of the Imagine Service. To the extent that the indemnity under this clause is in favour of indemnified parties other than us, we contract as trustee of the rights under this clause. This indemnity shall survive termination or expiry of this EULA.
- 6.2 The laws in your country may confer rights and remedies on you which cannot be excluded, restricted or modified ("Non-excludable Rights"). Where it is permitted to do so, we and the Licensor limit our liability for breach of any condition which cannot be excluded, at our option or at the option of the Licensor (as relevant), to:
- (a) in the case of services, the supply of the services again or the payment of the cost of having services supplied again; and
- (b) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired.
- 6.3 Subject to clause 6.2, and to the fullest extent permitted by law, in no event shall we or the Licensor be liable (whether in contract, tort, statute, warranty, under an indemnity or otherwise), for lost profits, loss of business or for any indirect, incidental, consequential, special or exemplary damages arising from or in relation to a claim brought in connection with this licence.
- 6.4 Subject to clause 6.2, and to the fullest extent permitted by law, our total liability and the total liability of the Licensor to you for all claims arising (whether in contract, tort, statute, warranty, under an indemnity or otherwise) in connection with this agreement, shall not exceed, in aggregate, the amount paid by you in respect of the imagine service.
- 7. Termination
- 7.1 We or the Licensor may terminate this EULA immediately by written notice to you if you commit a material or persistent breach of this EULA which you fail to remedy (if remediable) within 7 days after the service of written notice requiring you to do so.
- 7.2 Upon termination for any reason:
- (a) all rights granted to you under this EULA shall cease
- (b) you must cease all activities authorised by this EULA; and
- (c) we or the Licensor may destroy or otherwise dispose of any of your data (including photographs) in our possession.
- 8. Events outside our control
- 8.1 Neither we nor the Licensor will be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that is caused by an event outside our control.
- 9. Other important terms
- 9.1 We or the Licensor may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA. You may only transfer your rights or your obligations under this EULA to another person if we agree in writing.
- 9.2 If either we or the Licensor fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we or the Licensor do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
- 9.3 Each of the provisions of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
- 9.4 This EULA, its subject matter and its formation, are governed by the laws of the country in which we have our main place of business.