Kmart Photos Terms and Conditions

Revised: 17 June 2021 (ID: 2021_06_17)

The Kmart Photo Website, iOS Photo Application and Android Application provide photo printing offered by Kmart Australia Ltd ABN 73 004 700 485 (Kmart), with services powered by Kodak Alaris Australia Pty Ltd (ABN 26 164 376 881 (Kodak) (Photo Applications).

The Photo Applications allow you to order products such as digital prints, photo books, photo gifts, canvas prints, calendars and greeting cards and other items (Product) from Kmart which will be printed and dispatched to you by Kmart or Kodak in accordance with your order.

The Photo Applications are owned by Kodak and its licensors.

Kmart and Kodak are together referred to as Parties in these Photos Terms and Conditions.

By accessing and using any of the Photo Applications, you acknowledge that you have read, understood, and agree to be bound by these Kmart Photos Terms and Conditions and the Kmart Terms of Photo Applications Use (Terms). These Terms together with the price, specifications and delivery details stated in your order, form the terms on which you agree to access and use the Photo Applications.

If you do not agree to these Terms and Conditions, you must not access and use any of the Photo Applications.

1.    Intellectual Property Rights

1.     The Photo Applications are protected by copyright under the laws of Australia and other countries through international treaties. Unless otherwise indicated, all rights (including copyright and trademarks) in the Photo Applications and all of their contents, are owned by Kmart, Kodak or their licensors.

2.     Neither Kmart nor Kodak claim ownership rights in any images or photographs submitted by you to the Photo Application(s). The copyright owner continues to own all of the images and photographs submitted by you to the Photo Applications.

 

2.    Order Acceptance

1.     By placing an online order for a Product (Order) you confirm that:

a.     you have checked all pages and previewed your Order using the preview function;

b.     your design fully meets your requirements and you wish to proceed with your Order; and

c.     you understand that once submitted, your Order cannot be altered or cancelled.

2.     Kmart and/or Kodak reserve the right to accept or reject your Order in whole or in part for any reason, including for conduct in breach of clause 4.

3.     For each Order placed, you must pay:

a.     The applicable price for your Order confirmed by Kmart in the shopping cart; and

b.     The delivery and handling fee specified in your Order.

4.     Flybuys, Wesfarmers or Kmart staff discount cannot be used when ordering your Product.

3.    Your Content

  1. You are solely responsible for all content submitted or uploaded by you on the Photo Applications and retained in your file (Content). You should take appropriate steps to back up photographs submitted by you to the Photo Applications.
  2. You must proof and preview your Order and Content and carefully check any spelling before submitting your Order.
  3. After completing your Order, your Content will be stored on the server for up to 14 days for orders submitted at the in-store kiosk or up to 12 months for orders submitted by the website or mobile application, to enable online sharing and re-ordering. Thereafter the Content will be deleted.   Kmart and Kodak provide no warranty as to the availability of the Content and have no responsibility for any loss of data resulting from deletion.
  4. By uploading your Content, you grant the Parties a worldwide non-exclusive transferable right (including the right to sub-license) (Right) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute your Content solely for the purpose of providing the Product and related services to you. and to make your Content available to any third party to whom you have chosen to share your Content.  This Right exists for 14 days for orders submitted at the in-store kiosk or 12 months for orders submitted by the website or mobile application.
  5. You warrant that you are either the owner of the copyright OR you have a license from the owner of the copyright to reproduce your Content in your Product.  Kmart and Kodak are not responsible for your misuse of images, Content or Product.

4.    Prohibited Conduct

1.     You must not upload, post, transmit, reproduce or otherwise make available through any of the Photo Applications any material which:

a.     violates or infringes the rights of others (including their privacy and intellectual property rights);

b.     is unlawful, threatening, abusive, defamatory, invasive of privacy, vulgar, obscene, profane or which may harass or cause distress or inconvenience to, or incite hatred of, any person; encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any law;

c.     restricts or inhibits any other user from using or enjoying any of the Photo Applications;

d.     affects the functionality or operation of any of the Photo Applications or the functionality or operation of any user's computer systems (e.g. by transmitting a computer virus or other harmful component, whether or not knowingly); or

e.     breaches any standards, content requirements or codes promulgated by any relevant authority, including authorities that require the Parties to take remedial action under any applicable industry code.

2.     The Parties reserve the right not to produce any item that it reasonably believes may contravene Australian law; contain explicit or sexual imagery; is invasive of privacy; vulgar; obscene; profane or which may harass or cause distress or inconvenience to, or incite hatred of, any person. 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.

3.     Except to the extent that the Copyright Act 1968 (Cth) allows you to do so, you must not reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any source code, algorithms, methods or techniques embodied in the Photo Applications. you must not modify, pledge, sublicense, rent, lease, or create derivative works based on the Photo Applications, including its user interfaces. The source and object code of the Photo Applications must not be accessed, examined or shared except as permitted by law.

5.    Liability

1.     The Parties will not accept liability for damage or loss of your Content.

2.     The Parties cannot guarantee that the quality of the Product will be as seen on your device or your Order.

3.     The Parties' liability is limited to errors which are related to production, shipping and delivery of the Product in accordance with your Order.

4.     You must properly secure your user-name and password. The Parties are not liable if your user-name or password is used by an unauthorised person. You agree to release and/or indemnify the Parties in connection with any use (whether authorised or unauthorised) of your user-name or password.

5.     You agree to indemnify and will keep the Parties indemnified against any claim, demand, injury, damage, loss, expense, cost or liability (whether direct or indirect) made against or suffered by the Parties in connection with your use of any of the Photo Applications, your Content, the Order, your breach of these Terms and Conditions or your breach of any rights of third parties.

6.     Where the Parties are liable (severally or jointly) under the Australian Consumer Law, liability shall be limited to (Remedy):

a.     the replacement of your Product in accordance with your Order or the supply of an equivalent Product;

b.     the payment of the cost of replacing your Product in accordance with your Order or of the supply of an equivalent Kmart Photos Product; or

c.     refunding your Order

If there is a major failure (as defined in the Australian Consumer Law), you can choose your Remedy.  If there is a minor failure, the Parties (severally or jointly) can choose the Remedy.

7.     You agree that, to the fullest extent permitted by applicable law, the Parties will not be responsible or liable (whether in contract, tort (including negligence) or otherwise) for any:

a.     interruption of business;

b.     access delays to, access interruptions to, suspension of or discontinuation of the service;

c.     data non-delivery, mis-delivery, corruption, destruction or other modification;

d.     loss or damages of any sort incurred as a result of dealings with the service;

e.     viruses, system failures or malfunctions which may occur in connection with your use of the service;

f.      any inaccuracies or omissions in content; or

g.     events beyond our reasonable control.

6.    Delivery Time

1.     Kmart or Kodak will endeavour to produce and deliver your Product within 3-14 business days to your nominated address or nominated Kmart store.

2.     Delayed delivery is not a basis for cancellation of the Order or a request for compensation.

3.     If delivery cannot be made to your home, you agree for the courier to leave the parcel in a safe place. Alternatively, an attempted delivery notification card will be left and the item will be available for collection from the nearest post office.

7.    Rights the Parties cannot exclude

The above disclaimers and limitations on liability do not exclude, modify or limit any rights, which by law may not be excluded, modified or limited, including but not limited to your rights under the Australian Consumer Law.

8.    Complaints

If you have any complaint with these services or Product, please tell us by clicking

https://wlws.kodakmoments.com/kmart/help

9.    Privacy

1.     When you place your Order on the Photo Application, you will be asked for the following personal information: your name, e-mail address, mailing address, delivery address, any special delivery instructions and phone number. The Parties will use this personal information to enable the processing and delivery of your Order, provide information and updates regarding your Order and support to you for future orders including notifications. You consent to this contact and this use of your personal information by the Parties.

2.     Kodak may share all information associated with your Order and use of the Photo Applications with Kmart and you agree for Kodak to do so.

3.     Kodak and Kmart will only share that information which is absolutely necessary with any other third parties that are involved in the processing of your Order. For example, the shipping carrier that delivers your Order.

4.     The Parties are committed to reducing fraud. As a first-time customer, you may receive a telephone call or email requesting more information/proof to confirm the details that you have supplied to Kmart or Kodak. If any of the information you supply is found to be false or misleading, the Parties will not proceed with the Order and if deemed appropriate, report this to the appropriate authorities for them to consider prosecution.

5.     Save for using your personal information as specified in these terms the Parties will not share, sell, rent or barter any identifiable personal information to or with any third party without your consent.

6.     The Parties may send you information about their products and services including any specials and you agree for them to do so. There is an option in each email to unsubscribe to such information, if you do not wish to receive it. The Parties also have administrative procedures in place to remove email addresses and domains that consistently send failure messages to its email servers.

7.     Kmart’s Privacy Policy can be found here.