1 The parties are recorded as:
Christine VanO Photography
(hereinafter referred to as the Photographer)
(as fully described on the Invoice, duly signed by said Client)
It is agreed that the Client requires the professional services of the Photographer as specifically set out in the Invoice.
It is agreed that the professional services will be provided on a best-effort basis on the agreed date, time and at the agreed location in accordance with the standard terms of trade for such services as published by the Photographer from time to time but that the Additional Terms and Conditions and the service fee, as set out in the Invoice, and description of and for the professional services will be the binding rate for the services outlined herein and accepted by the Client at date of signature of the Invoice subject to the provisions of (4) here under.
The agreed service fee, (as set out in the Invoice), applies to the professional services fee of the Photographer and the Client understands that any materials / travel / accommodation included in the overall Invoice may be subject to unknown increases in the costs of supply by third parties whose services are vital and material to the provision of the services required of the Photographer. The Photographer agrees to indemnify the Client against such increases up to a maximum of 10% where such services and materials carry an imported goods component which could be subject to exchange rate and / or supplier / regulatory changes between the date of signature of the Invoice and the provision of the services. This applies to items such as fuel, air transport, hotel accommodation, chemistry, photographic papers, photo books, canvas prints and other stock-in-trade vital to the provision of the services requested of the Photographer. Any increases over and above the 10% contemplated will be for the Client’s account and will be added to the balance due and payable no later than 14 working days prior to the booking date, as set out in the Invoice, as a consequence of this agreement.
The Client understands that, while every reasonable precaution is taken by the Photographer to protect data, including (but not being limited to) the provision of back-up equipment, secure backup and duplication of image files / document drafts and / or materials used, unforeseen circumstances such as lightning strike, hijacking, fire, theft and / or other conditions may lead to the loss of all or some of the data carrying the intellectual property pertinent to the completion of the professional services agreed to. It is material to this agreement that the Client understands that the only remedy offered in the case of partial and / or total loss of data and / or materials is to arrange a re-shoot / re-write re-supply or a no-charge photographic session with the Photographer and that no other compensation for direct or consequential losses to the Client can and will be entertained.
Where a specific time period is included in the Invoice, such time period shall run from the time of arrival at the first location specified by the Client at the time agreed to and expire after the designated period set out in the Invoice, up to and including the time of final departure of the Photographer from the agreed location(s), regardless of the circumstances provided by the Client or subject to the Photographers discretion at that specific time. Should the circumstances be as such that the function / event / photo shoot / other runs late during the specific time period included in the Invoice and the Photographer is not able to fulfil her quota of specified images, as set out in the Invoice, the Photographer shall not be held liable for any shortcomings in image quantities and the Client takes full responsibility for the delay in the specified time period and the shortcomings in the images. The Photographer will not be held responsible, nor will any refund or any other form of compensation be entertained by the Photographer in this instance. The specified quantity of images set out in the Invoice is subject to the function / event / photo shoot / other running during the specified times set out in the Invoice.
It is material to the agreement that, in order for any professional services (as detailed in the Invoice), to be booked and confirmed, a securing non-refundable administrative deposit of up to 100% of the agreed assignment fees as set out in the Invoice, be paid to and / or received by the Photographer upon signature of the Invoice. No claim may be made by the Client against the administrative deposit under any circumstances where the Client cancels the function, appointment, booking or interview. The only remedy available to the Client for the return of any administrative deposit paid will be in circumstances where the Photographer (or an appointed alternate service provider as decided upon by the Photographer in her sole discretion) is unable to provide the services contemplated for any reason due to unforeseen circumstances such as debilitating illness, injury and / or the actions of third parties which prevent the Photographer (or an appointed alternate service provider as decided upon by the Photographer in her sole discretion) from arriving to undertake the professional services agreed to herein. The Client understands that in the event that the Photographer has appointed an alternative service provider to proceed with the booking, the service provider selected by the Photographer may not have the same rate or fee as the Photographer and an additional fee may be payable to the alternative service provider, failing which the Client has the option to forfeit the admin booking deposit and select their own service provider at their own and additional cost.
It is understood by the Client that any delay in signature or payment of the Invoice (whether by omission, lack of available funds or any other cause whatsoever), the period of which coincides with another request for professional services on the same day and / or time requested by the Client from another party (which is secured by a signed Invoice and payment of the administrative deposit), will result in such other party securing the services of the Photographer for the date / time and that no claim may be raised as to the priority of service provision for the party that has not yet signed the Invoice and / or paid their administrative deposit.
Should the professional services involve the provision of photographic services, journalism and / or training at a function, the Client is to provide the Photographer, and an assistant, seats at any such function.
Should the professional services be required at a location further than 50km from Port Elizabeth, and the completion of the services will only occur after 21h00 in the evening, suitable private overnight accommodation must be provided for the Photographer and an assistant at a location convenient to the location where the services will be rendered so as to provide an access time of no more than 10 minutes to the venue where the services are to be provided.
The Client affirms and attests that he / she / they have inspected representative samples of previous professional services undertaken by the Photographer in the same discipline as that contemplated in terms hereof and as set out in the Invoice and that they are satisfied that the Photographer is able to provide them suitable services as required for their requirements on a best-effort basis utilizing her previous experience and skill but that, notwithstanding anything to the contrary, variations in the scope, quality and volume of work provided may occur due to factors not within the control of the Photographer such as (but not being limited to) poor weather, unsuitable lighting, atmospheric conditions, non-cooperation of third parties, legal restrictions which may be enforced on the day of service provision, power failures, strikes / lockouts, civil unrest, non-arrival of third parties not under the control of the Photographer, physical conditions afflicting people being photographed such as (but not limited to) acne, influenza, lack of sleep, rashes and / or wrinkled or soiled clothing, dirty vehicles used and visible in photographs, the condition of the location and / or décor as but some examples and that no claims may be made citing any such factors as a reason for any claim whatsoever.
It is understood that, in order to control the public face of the quality level of the work provided by the Photographer, which level is an integral part of her good name, the Photographer will undertake the contracting of any printing and make-up of any photographic albums, brochures and / or web-sites which may be required as a consequence of her professional services being provided. Where a Client may require images in a printable form, these will only be made available after the make-up / printing / publication of the images by the Photographer and the Client will not, at any stage, be placed in receipt of high-resolution image files until such work has been completed.
It is understood that the Client is the owner of the copyright of any work commissioned but that the intellectual property rights of the work vest in the Photographer whose authorship must, at all times of publication or public display, be acknowledged alongside any work produced by her. The Client may not, therefore, publish, use or otherwise commercially appropriate the images / brochures / books / text / recordings and / or other intellectual property provided as a consequence of this agreement in any manner other than that which was agreed to herein and in the Invoice. Any additional commercial usage, publication or appropriation is to be discussed and agreed to between the Photographer and the Client and any un-agreed to commercial usage of the intellectual property will render the Client liable to additional usage charges as per the normal usage and publication fees in force by the Photographer at the time of such additional commercial usage.
It is understood that any dispute arising from the execution of this Agreement will be settled by means of arbitration only and that such arbitrator be appointed from the ranks of similar service providers within the Durban professional photographic and / or Journalism profession whose decision will be binding on both parties and that the costs of any such arbitration being allocated equally between the parties hereto.
15. SPECIAL CONDITIONS
The Photographer will be the exclusive photographer retained by the Client for the purpose of the photography services, as set out in the Invoice. Family, friends etc. are prohibited from photographing during any Location photo shoots, studio shoots, during the official wedding photographs after the ceremony involving the Bride, Groom, Bridesmaids, Grooms-men and the Bride and Groom’s family, and any set photographs that the photographer has specifically arranged during any function and or event.
15.2.ADMINISTRATIVE DEPOSIT & PAYMENT
The Client will be issued with an Invoice which has a unique Invoice Number, which is subject to this Agreement. The Invoice is valid for a maximum of 30 (thirty) days. On date of receipt of the Invoice by the Client the administrative booking deposit becomes payable and due. It is to be paid via EFT into the account specified on the Invoice. No booking will be secured without the administration booking deposit having been paid and cleared in the bank account set out on the Invoice and is subject to (7) above. The balance of the Invoice (if any) is to be settled via EFT, into the bank account set out thereon, no later than 7 working days prior to the date of the booked photography service (as set out on the Invoice). Failure to settle outstanding payment will result in cancellation of the booking and loss of administration booking deposit. The Photographer will not be held liable for any payments made into her bank account in error by the Client. Any payment made into the Photographers bank account by the Client, confirms acceptance and acknowledgement and understanding of this Agreement of Terms and Conditions and the Invoice. The Invoice, is valid for a period of six months from the date set out on the Invoice, once the administrative booking deposit has been received, as being the date of issue of the Invoice. The said photo shoot is to be redeemed within a six month period from the date of issue of the invoice, (except in the instance of a wedding, event or function booking) in the instance that the initial booking is postponed or cancelled for whatever reason. Failing which the Invoice will become null and void and the booking will be cancelled. No refund will be entertained in this instance.
If the Client wishes to cancel the booking, the administrative booking deposit will not be refunded. The Client is encouraged to change the booking date to a more suitable date to both parties (subject to the Photographer’s availability and (17) above) within 7 working days prior to the booking date. Failure to change the booking date within the specified time will result in cancellation of the booking and loss of the administrative deposit and any other payments that have been made. No exceptions or special circumstances will be entertained.
The Photographer shall have the exclusive right to make reproductions of any photographs taken in respect of the booking. The photographer shall only make reproductions for the Client, for the Photographers portfolio, samples, self-promotions, entry into photographic contests, art exhibitions, advertising, illustration, editorial use or for the display within the outside of the Photographers studio, including printed materials, media on the internet, and any current or future digital media. If the Photographer desires to make other uses, the photographer may so, without the oral or written permission of the Client.
The Client may obtain prints of the photographic material from the shoot for personal use only, and shall not sell or authorise any reproductions thereof. If the Client is obtaining a print for a newspaper announcement the Photographer authorises the Client to reproduce the print. In such event the Client is shall instruct the newspaper to run a credit for the Photographer alongside or underneath the photograph.
15.6.PROCESSING OF PHOTOGRAPHS
Processing / editing / creative work on the photographs may take up to 6 weeks. The Photographer endeavors to expedite all photographic work on behalf of the client. Collection of all photographic material belonging to the Client (as per the Invoice), is to be collected from the Photographer at a mutually agreeable location in Port Elizabeth, and a date and time mutually agreeable between the Photographer and the Client. Alternatively postage or delivery of the photographic material can be arranged, at an additional cost to the Client. The creative aspect of the editing process (including, but not limited to, black and white conversions, sepia conversions and selective colour) is at the discretion of the Photographer. Any additional conversion, whether to original colour or to black & white, sepia or selective colour etc will be at an additional charge to the Client. The Client will at no stage be permitted to view the full set of RAW images and will only be issued with the finished product, as per the invoice. The Photographer is not liable to deliver every image taken at the photo shoot, event, function or wedding. The determination of images delivered to the Client is left to the discretion of the Photographer. No RAW images will be delivered to the Client under any circumstances.
15.7.INCLIMATE WEATHER CONDITIONS
Should the weather not be suitable (including, but not limited to, rain/thunder/hail/snow) to carry out the said photo shoot (not including pre-arranged events, such as a weddings and or events and functions), the Photographer undertakes to contact the Client no later than 2 hours prior to the photo shoot to re-schedule the date and time, to a date and time mutually suitable to both the Client and the Photographer (subject to the Photographers availability). Should the Photographer not be able to contact the Client telephonically within an hour preceding the photo shoot the Photographer reserves the right to cancel such booking and reserves the right not to re-schedule or re-book such photo shoot and any / or all payments in respect of such shoot will not be refunded.
Any cash deposits made into the Photographers bank account incur a charge of a minimum of R5.50 PLUS 07.% of the total amount deposited per ATM cash deposit or a minimum of R43.00 PLUS 1.51% of the total amount deposited per Bank cash deposit, per transaction and will be for the Clients account. EFT payments are the encouraged method of payment.
15.9.ORDERING AND REDEEMING OF PRINTED ITEMS INCLUDED ON AN INVOICE
Any and all printed items, including (but not limited to) canvas’s, framed prints, poster prints, photo books, and post cards, MUST be ordered and redeemed within 3 months from the date of the photo shoot, event, function or wedding, as set out on the invoice. Failure to inform the photographer of your order to redeem your printed item will result in the item becoming null and void and no compensation for the item will be entertained. It is the Clients responsibility to ensure that they order the specified printed item(s) timeously.
The Photographer reserves to right to terminate coverage and leave the location of the Photo shoot, event, function or wedding if the photographer experiences inappropriate, threatening, hostile or offensive behaviour from the Client or person(s) at the photo shoot, event, function or wedding or in the event that the safety of the photographer is in question.
The Client is responsible for acquiring all permits and necessary permission for all locations on which the Photographer will be performing services.
15.13.RELEASE OF LIABILITY
The Client agrees to release the Photographer from all liability relating to injuries that may occur during all photography as set out in the invoice. By signing this agreement, the Client agrees to hold the Photographer entirely free from any liability, including financial responsibility for injuries incurred, regardless of whether injuries are caused by negligence. The Client agrees that he/she and his/her participants do not have any conditions that will increase the likelihood of experiencing injuries while engaging in any photography carried out by the Photographer. The Client agrees that by signing this Agreement, the Client will forfeit all right to bring a suit against the Photographer for any reason relating to loss or damage to the Clients property and/or injury or illness sustained during any photo shoot carried out by the Photographer, as per the invoice.
This concludes the Agreement of Terms and Conditions.