1.Scope of Goods and Services
1.1.We provide professional photographic goods and services that are outlined in your invoice,
and may be as follows:
(a)consultation in relation to the provision of the services at your Event;
(b)provision of photographic services on the day; and/or
(c)digital and/or physical prints;
(hereafter ‘the Goods and Services’).
2.Expression of Interest
2.1.You acknowledge that until a Booking Fee is paid (in accordance with Clause 3), your enquiry (whether by email or by telephone) is an expression of interest only and not a binding agreement to provide services on the proposed Booking Date.
2.2.Full payment of Booking Fee is the only means by which a date is held for you.
3.Booking Fee
3.1.You must pay a booking fee of 25% of the total invoice for your Booking Date to be confirmed (‘the Booking Fee’).
3.2.Such Booking Fee is non-refundable unless otherwise provided by these Terms. The purpose of the Booking Fee is to secure our Goods and Services on the specific Booking Date, and for costs and expenses for work performed in order to prepare for your Booking. The Booking Fee has been set as liquidated damages as a genuine estimate of loss suffered in the event that you cancel the Booking, regardless of whether we are able to book another client on your Booking Date.
3.3.The Non-Refundable Booking Fee is not transferable to another Booking Date or another type of goods or services (unless otherwise provided within the Terms), and the variation of your Booking Date constitutes a new booking, subject once more to further Terms, whether the same or varied.
4.Payments
4.1.You agree to make payment of the total price of our Goods and Services. This amount will be provided in an invoice and may include any other further charges incurred in accordance with the Terms (‘the Invoice’).
4.2.You are required to pay for the Goods and Services as follows:
4.2.1. The Booking Fee as outlined in Clause 3;
4.2.2.
Further part payment of 25% of the total quote for the collection six (6) months prior to your Booking Date (‘the Progress Payment’); and
4.2.3.
The remainder of the Invoice (being ‘the Final Payment’) due twenty one (21) days prior to your Booking Date.
4.3.Any payments made to us will be made via direct deposit, or as directed by us.
4.4.Failure to pay the Final Payment means that we may suspend or withhold the provision or performance of Goods and Services until such payment is made.
4.5.Where it is that your Booking is behind schedule and we are asked to remain at the Event, it will be at our discretion as to whether we stay for the later time. Where this does occur, there will be a fee payable by you of $500 per hour of extra coverage.
5.Cancellation or Postponement of Booking
5.1.You may cancel this agreement at any time, by notifying us in writing and subject to the clauses below.
5.2.Where you wish to cancel and you give proper notice, being 90 days (‘Proper Notice’), your second and third payment (if made) will be returned to you as soon as reasonably practicable. Upon providing Proper Notice, you may also postpone your Booking to a date mutually agreed between us. If a date is agreed, we will transfer your Non-Refundable Booking Fee (first payment) to that new Booking Date. Where reasonable attempts have been made to find a mutually acceptable new date and parties are unable to agree, we will retain the Non-Refundable Booking Fee in accordance with these Terms.
5.3.Where you wish to cancel and Proper Notice is not, or cannot, be provided, all monies paid will be retained. If you cannot give Proper Notice but want to postpone, this can be done so if a date can be mutually agreed between us. If a date is agreed, your Non Refundable Booking Fee (first payment) is retained but we will credit any monies paid beyond your Non-Refundable Booking Fee to that new date. You will be required to pay a further Non-Refundable Booking Fee for a new Booking Date.
5.4.Where reasonable attempts have been made to find a mutually acceptable future date and parties are unable to agree, all monies paid to date will be retained.
5.5.In instances where you wish to postpone, regardless of whether Proper Notice is provided, you are allowed one postponement only. The new Booking Date must be within thirteen (13) months of the original Booking Date otherwise your Booking is considered cancelled. The new booking can be for a reduced package, no less than the “spark” package price.
5.6.We may terminate the agreement between the parties where you are in breach of the Terms, including but not limited to the non-payment of the Invoices. Where we terminate the agreement for a breach, you will be responsible for all fees and disbursements incurred or accrued prior to termination.
5.7.We may withdraw our Services in some circumstances. Such circumstances include (i) discovery of new information; (ii) changes to agreed circumstances, or (iii) other factors which tend to circumvent our policies, including non-cooperation, changes in locations, facilities or available times, missed appointments and late payments.
6.Production
6.1.You acknowledge that in order to avoid dark, grainy or blurred images, we may need to use lighting. Where images may be impacted by poor lighting, we may also direct you, or others who are being photographed, to relocate to a place where there is better lighting. Where you, or another person, refuse to move to that location, we cannot be responsible for the quality of the images.
6.2.You acknowledge that we cannot be held liable for electrical or mechanical malfunctions on location that are beyond our control.
6.3.You acknowledge that you are familiar with our portfolio and are requesting Goods and Services with knowledge of our style. You acknowledge that our work is constantly evolving and that our Goods and Services are of a unique and artistic nature. You acknowledge that the images may be different from images done by us in the past and that in creating the image, we shall use our own creative artistic judgment to create those consistent with personal judgment and consistent with our vision of the Event. This may be different from your vision of the Event. Accordingly, you acknowledge that the photographs shall not be subject to rejection on the basis of taste or aesthetic criteria.
7.Post-Production
7.1.To ensure a professional standard of photograph delivery, postproduction and subsequent delivery of photographs can take a minimum of eight (8) weeks to complete.
7.2.If you request further editing such as extra colour, black and white conversions or retouching to the footage provided by us, this may be done depending on the request. This service will be charge to you at a fee of $150.00 per hour.
7.3.If relevant to your package, the time to produce any items such as frames/prints/albums will depend on the supplier that provides such products to us. We will endeavour to keep you updated on the progress of these products.
7.4.After your Booking Date, we will provide you with an online gallery. This gallery will contain all images of a professional standard that ensures our professional integrity is upheld. It remains at our discretion as to which photos are deemed not usable.
7.5.Unedited files, digital negatives or RAW images are not available for viewing or purchase.
7.6.We will archive footage for 24 months, after this time the images may be deleted. We cannot guarantee extra copies of images once the files have been handed to you. It is your responsibility to ensure you back up your files to a hard drive/internet storage in case you lose/damage your original copy of the files. You download your high quality imges from the online gallery which expires in 12 months. Requests for files after this period are $150/event provided files are still archived.
8.Intellectual Property
8.1.The photographs, digital negatives or prints produced by us are protected under all relevant Copyright Laws (with all rights reserved) and may not be reproduced, duplicated or altered in any manner without our explicit written permission.
8.2.You must not edit, change, add to, take from, crop, alter or otherwise amend the photographs without our prior consent. You must also ensure that when making the photographs publicly accessible on social media, that no filter or editing mechanism is used to alter the photos.
8.3.Upon final payment by you, limited copyright ownership of the resulting images will be transferred to you under the following conditions:
8.3.1.
Final images are your property
for personal use and for the purposes of the reproduction and distribution of photographs to friends and relatives;
8.3.2.
You must obtain written permission from, and compensate us prior to an event where you, your friends, relatives or vendors publish or sell any photographs by us for profit or attribution;
8.3.3.
You are unable to use any of the images for commercial or editorial purposes or enter any images into competitions or blogs without our express written permission.
8.3.4.
Any uploading of images to social media should be accompanied by a link to our website or tag in comments to our social media page of the platform used.
9.Model Release
9.1.You hereby assign and grant us the irrevocable and unrestricted right to (i) use and publish photographs of you or in which you may be included, for editorial, trade, advertising or any other purpose and in any manner and medium; (ii) to alter the same without restriction; and (iii) to copyright the same.
9.2.You acknowledge that it is your responsibility to obtain the necessary assignment of rights to us from those who are to be featured in photography so as to ensure that we can use and publish the photographs of those persons.
9.3.You must inform us in advance of any persons at the Booking that do not wish to, or cannot, be filmed, for whatever reason. These persons must be then identified on the Booking Date to us.
9.4.You hereby release us and assigns from all claims and liability relating to said footage. it is agreed that we may display and use the footage taken for advertising, display, website and internet promotion, photography contests, public display, and any other purpose thought proper by us.
10.Photographic Limitations
10.1.You acknowledge that we are not responsible for the inability to take certain photographs or the reduction in quality of photographs taken because of factors such as; restrictions of the venue, time constraints, non-cooperation of clients or guests, guest flashes or guest photography, access restrictions, laws, environment, safety restrictions, weather, lighting conditions, time constraints, interference by guests, interference by other vendors or any member of the public, equipment limitations or skill limitations.
10.2.You acknowledge that the photographs delivered may be different from work performed or displayed by us in the past and that in creating the photographs, we shall use our own creative artistic judgment to create photographs consistent with our personal judgment and consistent with our vision of the event, which may be different from your vision of the event. Accordingly, you acknowledge that the photographs shall not be subject to rejection on the basis of taste or aesthetic criteria.
11.Cooperation
The parties agree to positive cooperation and communication for the best possible result within the definition of this assignment. We are not responsible for key individuals’ failure to be present or to cooperate during filming sessions, neither for missed footage due to details not revealed to us. We recommend that you designate an “event guide” to point out and gather specific individuals to us, whom you wish to include in formal, informal or candid footage.
12.House Rules
We are limited by the rules, regulations and guidelines of the ceremony official or venue management, if applicable. You agree to accept the technical results of their imposition on us. Negotiation with the officials for moderation of guidelines is your responsibility.
13.Exclusivity/Guest Photography
13.1.It is understood that we will act as the sole and exclusive wedding photographer on the Booking Date. The Photographer may, at times, also have an assistant or second photographer under their guidance.
13.2.It is your responsibility to ensure that guests are not interfering with our photographic efforts. No other guest or photographer using commercial equipment must not be allowed at any time during the Booking if its use is interfering with the quality of footage taken by us. Guests using any camera device (eg iphone) must not be allowed to stand near the Photographer taking the same photograph, including but not limited to group photos.
14.Meal for Photographer
15.1.You shall provide a meal for us, and any employees or contractors (including a “second photographer”). It is your responsibility to advise the Photographer of any significant events during mealtime before they take place.
15.Safety
16.1.You shall agree, while working with us, you will not undertake any illegal or dangerous activities that threaten our safety and well-being.
16.2.We reserve the right to refuse to operate equipment in locations or environments which may result in personal injury or damage to equipment.
16.3.Unless legislation provides otherwise, it is your responsibility to ensure you, and your other vendors, are following government health laws, directions and regulations, including those restrictions relating to gatherings and social distancing.
16.4.If these government health laws, directions and regulations are not strictly adhered to and we feel the personal safety of our employees and contractors are at risk, we reserve the right to exit the event and our duties and you will forfeit any fees paid.
16.5.We are not responsible for the failure of the wedding participants and guests to follow government health regulation, including those relating to COVID-19, including those restrictions relating to gatherings and social distancing. To the fullest extent permitted by law you agree that we will not be liable to you or any person for any claim resulting from issues relating to COVID-19 or any other public health issues and the following of mandatory rules and regulations relating to the same.
16.Subcontracting of Services
In the unlikely event of severe medical, natural, or other emergencies, we will make every effort to secure a replacement. If a suitable replacement is not found, responsibility and liability is limited to the return of all payments received for the Goods and Services.
17.Warranty, Liability and Indemnity
18.1.To the extent that the Australian Consumer Law allows, we provide the Goods and Services on an “as is” and “as available” basis and disclaim all representations, warranties and conditions of any kind, whether express, implied, statutory or otherwise with respect to the Goods and Services (including all information contained therein), and including any implied warranties of merchantability, fitness for a particular purpose, non-infringement, title or ownership.
18.2.While we take the utmost care with respect to exposure, storage and processing of photography files, we cannot and do not guarantee that photography of your event will not be lost, stolen, or destroyed for reasons within or beyond our control. Where this has occurred, and it is deemed our fault, and where a total loss has occurred resulting in no photographs able to be delivered, we will provide a full refund. In the event of a partial loss, a partial refund equal in percentage to the percentage of gigabytes of data lost will be refunded. The content or context of the lost data will be irrelevant when determining the amount refunded.
18.3.To the fullest extent permitted by law you agree that neither we or our employees will be liable to you or any person for any claim resulting from or arising out of your use of (or inability to use) the Goods and Services. This includes any direct, indirect or consequential loss, even if such loss was not contemplated at the time of making the Booking or accepting these Terms.
18.4.To the fullest extent permitted by law, you agree to indemnify us, and our officers, directors, and employees from and against all claims, including reasonable legal costs, resulting from any breach of the Terms or any activity related to your use of the Goods and Services, (including, without limitation, infringement of any third party’s copyright, trade mark, patent or other intellectual property rights anywhere in the world or any negligent or wrongful conduct) by you and any liability for any claim, whether direct, indirect, incidental, special and/or consequential loss even if such loss was not contemplated at the time of making the Booking or accepting these Terms.
18.Delivery of product end of contractual obligations
19.1.It is understood that our obligations to you are fulfilled when all Goods and Services have been completed or delivered to you. Requests for further services or products must be requested in writing and be acknowledged by us. Requests for further services may attract an additional fee or terms.
19.2.It is your responsibility to make adequate copies of all delivered products and images where possible. We are not obliged to retain copies of digital negatives, RAW files, edited files or uploaded files after completion and delivery of the Goods and Services.
19.Force Majeure
20.1.We will not be liable or responsible for any failure to perform, or the delay in performance of, any of our obligations under the Agreement that is caused by any act or event beyond our control. Examples include, but are not limited to, acts of God, flood, fire, warfare, government laws or regulations, electrical fire, strikes by suppliers (known as ‘force majeure circumstances’).
20.2.If a genuine force majeure circumstance occurs and means that the performance of our obligations under the Agreement is impossible, we will contact you as soon as reasonably possible to notify you and our obligations under the Terms will be suspended and the time for performance of our obligations will be extended for the duration of that force majeure circumstance. This clause does not apply in circumstances where an event outside of our control occurs, but the circumstances still make the Booking possible (notwithstanding inconvenience or hardship).
20.3.If you cancel the booking or vary the booking because the alleged event outside of our control causes mere inconvenience or changes the Booking in a manner that does not suit you, any fees and charges that are deemed non-refundable remain so and we are only obliged to use our reasonable endeavours to provide an alternative date.
20.4.In genuine force majeure circumstances, we will endeavour to arrange a new date for the Booking with you after the event outside of our control is over. Parties must use all reasonable endeavours to mutually agree on a new date, but if the parties are unable to agree on an alternative date, the Booking will be considered cancelled, and return of any monies, excluding the Booking Fee, will be returned to you. In force majeure circumstances, where an alternative date can be provided which has resulted from a force majeure event, we will credit any amount paid already for a date that can be mutually agreed.
20.5.Regardless of reason for postponement, you are only allowed one postponement only. The new Booking Date must be within twelve (12) months of the original Booking Date otherwise your postponement will be treated as a new Booking.
20.6.If you choose to book again and an event beyond our control is reasonably foreseeable, based on Government guidance, then the booking is done so at your own risk and we are not liable for any loss suffered as a result of the failure of your second booking to proceed. We are under no obligation to provide a further date as a result of any cancellation or postponement.
20.Jurisdiction
These Terms are governed exclusively by the laws of Western Australia. Any legal proceedings relating to them can only be taken in courts with jurisdiction in Perth, Western Australia.
21.Severability and Waiver
If the whole or any part of a provision of the Terms is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not. This does not apply if the severance of a provision of the Terms in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under the Terms. Any failure by us to exercise or enforce any one or more of our rights under the Terms will not constitute a waiver of such rights unless such waiver is granted to you in writing.
22.Execution by Parties
These Terms must be executed by each partner named. In instances where it is signed by one party, the signing party acknowledges and warrants that they have the authorisation to execute the agreement on behalf of the other party. In doing so, they also warrant that the other party has read and understood the Terms prior to providing permission to execute.