TERMS & CONDITIONS

SPECIFICS

1. DEFINITIONS

In this document, unless the context otherwise requires, capitalised terms have the meaning given to them in these terms or in the absence of a definition herein, in the Quote.

Confidential Information means all information which:

(a) is disclosed to you in connection with this document at any time;
(b) is prepared or produced under or in connection with this document at any time;
(c) relates to our business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this document, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.

Intellectual Property means any:

(a) copyright;
(b) registered or unregistered design, patent or trademark rights;
(c) trade, business, company or domain names;
(d) know-how, inventions, processes, trade secrets or Confidential Information; or
(e) similar rights in any part of the world, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort, indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.

Party means a party to this document, and Parties means all of them.

The following terms, while not capitalised, are also defined terms:

we, us or our means Rae Services Pty Ltd ACN 669 273 161 which trades as as Hello Sweetheart (ABN 74 669 273 161) of 24 Corporal Way, Jordan Springs 2747 Phone: 0449 767 996 Email: adam@hellosweetheart.com.au.

you or your - means the person/s or entity/s or both to whom the Services are provided.

Services means the scope of Services set out in the Quote including any alterations or additions thereto agreed to as between the Parties in writing (including but not limited to short message service, text message and email).

Contract means a combination of this document and the Quote (or in the absence of either, the other individually).

Event means the event (for example wedding) at which the Services are to be provided.

Event Date means the date on which the Services are to be provided.

Event Location - means the location (expressed where possible as a street address) at which the Event is to occur (and if there is more than one location, each location individually and separately).

Price means the sum of money payable in return for provision of the Services as set out in the Quote.

Booking Fee means the sum of one-thousand dollars ($1,000.00).

Balance means the balance of the price then remaining at the relevant time being the Price minus any payments (including the Booking Fee) paid prior thereto.

Quote means any document (including but not limited to any short messaging service or text message, email, handwritten document or any combination thereof) which describes the Services we are to provide to you and the Price payable in relation thereto.

2. COMMENCEMENT AND PAYMENT TERMS

(a) The Contract comes into existence as between us and you when this document and/or the Quote is accepted (Effective Date). The terms of this document and the Quote will be deemed to be accepted on you accepting the terms electronically by clicking the word “Accept” via our customer relationship management system and/or by paying the Booking Fee and/or by accepting or acquiescing in the commencement of the provision of the Services, whichever comes first.

(b) The Parties agree that they intend to be legally bound by the terms of the Contract.

(c) You acknowledge and agree to pay the Price as follows:

  1. the Booking Fee on the Effective Date;

  2. a second payment being equal to fifty percent (50%) of the Balance no later than ninety (90) days prior to the Event Date;

  3. the final Balance no later than fourteen (14) days prior to the Event Date.

(d) You acknowledge and agree that we are not obliged to commence provision of the Services until the terms of this document and the Quote are accepted and the Booking Fee is paid.

(e) You acknowledge and agree that we are at liberty to cease provision of the Services if any sum of money due pursuant to the Contract is not paid on time in relation to which you expressly agree we will have no Liability.

(d) In the event that you have engaged us to provide Services on a date that renders the payment terms set out above impossible (for example at late notice and in close proximity to the Event Date) then the Price shall be payable in full, upfront unless otherwise agreed by us and we shall not be obliged to commence provision of the Services until said payment is made.

3. OUR OBLIGATIONS

(a) In consideration of you paying us the Price, we will provide the Services in accordance with this document and the Quote, whether ourselves or through our employees, consultants, suppliers, subcontractors or agents (Personnel).

(b) You may request a change to the Services by providing verbal or written notice to us (Variation Request). We will discuss the Variation Request with you and agree (in writing) to the change, together with any adjustment to the Price (if required). The Variation Request will be priced in accordance with our then current rates and prices, as at the date of the Variation Request.

(c) If you raise a complaint with respect to the Services which complaint is with respect to conduct by us that constitutes a breach of this document and/or the Quote we have the right to elect to remedy the complaint and thereafter shall have no Liability in relation thereto to the maximum extent permitted by law. In the alternative, we have the right to elect to refund to you that portion of the Price which correlates to the Services or part thereof in relation to which the complaint is made and shall have no further Liability in relation thereto. Nothing in this clause shall be construed so as to concede that any complaint of the nature contemplated herein is accepted by us and we reserve our right to reject such complaint when and if it is raised if we do not consider it to be legitimate or accurate.

(d) We agree to perform the Services with due care and skill and use our best endeavours to comply with your reasonable instructions.  Notwithstanding our obligations under this clause, to the maximum extent permitted by law, you acknowledge and agree that:

  1. we will have absolute discretion as to the performance of the Services (including, but not limited to, the creative or artistic licence and/or the instructed poses or locations of any photographs and/or videos forming part of the Services and/or deliverables);

  2. not all individuals present on the Event Date may be captured in any photographs and/or videos forming part of the Services and/or deliverables;

  3. our performance of the Services may be limited, obstructed and/or restrained for reasons beyond our reasonable control (including, but not limited to, restrictions in movement at the Event Location, weather or environmental conditions); and

  4. the colours in any photographs and/or videos forming part of the Services and/or deliverables may vary due to weather and lighting conditions on the Event Date.

(e) You shall not be permitted to make any claim and we shall not have any Liability with respect to any matter arising out of the circumstances contemplated by clause 3 (d) (1) – (4).

4. YOUR OBLIGATIONS

(a) You agree to comply with the Contract and all of our reasonable requests or requirements, including, but not limited to, providing information about the Event or Services in a timely manner.

(b) You agree to obtain, and provide to us, all things reasonably necessary to enable us to provide the Services (including, but not limited to, access to any location where the Services are to be performed).

(c) You agree not to engage any other professional photographer and/or videographer for the Event, without our prior written consent.  For the avoidance of doubt, you agree to only engage us for the performance of the Services.

(d) You agree to organise a meal for us at the Event (and any of our Personnel performing Services for you) for any Services that exceed a period of 5 hours.

(e) To the extent permitted by law, you acknowledge and agree that any directions we may issue to you (or any of your guests) during the provision of the Services, are undertaken at your (or any of your guests) own risk.

(f) You agree to pay us the Price, all disbursements (including travel and accommodation costs and third-party costs incurred by us in the provision of the Services), and any other amounts payable to us under this document and/or the Quote in accordance with clause 2 (c) and/or (d).

5. RESCHEDULING OR CANCELLING

(a) You must contact us in writing (including by email) immediately if you would like to reschedule the Event Date or cancel the provision of the Services.

(b) If you contact us to reschedule the Event Date, we will use reasonable endeavours to cater to your request (but are under no obligation to do so).

(c) If you contact us to cancel the provision of the Services, or we are unable to reach a mutually agreed date or time to reschedule the Event Date, we shall be entitled to terminate the Contract and you shall forfeit any part of the Price paid as at the date of termination on the basis that same shall constitute a genuine pre-estimate of our loss and damage suffered by virtue of the cancellation. You expressly acknowledge and agree that we will have suffered loss and damage having commenced provision of the Services, devoted time and resources to same and “booked out” the Event Date with the expectation that we would receive the Price in full.

(d) We will notify you as soon as reasonably possible if we are required to cancel the Services or reschedule the Event Date.

6. INTELLECTUAL PROPERTY

(a) As between the Parties, all Intellectual Property developed, adapted, modified or created by us or our Personnel (including in connection with this Document or the provision of the Services) (including but not limited to digital negatives, film or computer files) will at all times vest, or remain vested, in us.

(b) We grant you a perpetual, royalty-free, world-wide and irrevocable licence to use the Intellectual Property under clause 6(a) for your personal use.  You must not breach or infringe our Intellectual Property rights by, including, but not limited to:

  1. sub-licensing the Intellectual Property to third parties;

  2. making public or publishing any of our Intellectual Property without attributing the creation of any Intellectual Property to us (other than for personal or non-commercial uses); or

  3. using the Intellectual Property for purposes other than as expressly stated in this Document (including, but not limited to, using the Intellectual Property for commercial purposes or on-selling the Intellectual Property to third parties) without our prior written consent.

(c) You acknowledge and agree that we may use any Intellectual Property under clause 6 (a) for the promotion of our business, including, but not limited to, by displaying any Intellectual Property (including photographs or videos) on websites, social media, in emails or other direct marketing communication, magazine articles or advertising, or by creating sample albums or portfolios.

(d) On the Effective Date, you grant us a perpetual, royalty-free, world-wide, unconditional and irrevocable licence to use, develop, adapt and modify (Use) all Intellectual Property in any materials that you provide to us in connection with this Document, and you will ensure that any such Use does not infringe any Intellectual Property rights of any person.

7. LIMITATIONS

Despite anything to the contrary, to the maximum extent permitted by law:

(a) You warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the Effective Date;

(b) You agree that this document excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this document (to the maximum extent permitted by law);

(c) Our maximum aggregate Liability arising from or in connection with this document will be limited to, and will not exceed, the portion of the Price paid by you to us for the Services the subject of the relevant claim, or at our option, us re-supplying the Services to you;

(d) We will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:

  1. loss of, or damage to, any property or any injury to, or death of any person;

  2. events or circumstance beyond our reasonable control (including technical disruption or failure);

  3. acts or omissions of you (or any of your guests or third parties engaged by you in connection with the Event);

  4. loss of benefit (including anticipated benefit), loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data.

(e) You will indemnify us for and against all Liability arising from or in connection with any default or wrongful act or omission by you or any of your guests.

8. TERMINATION

(a) The Contract will terminate upon written notice by:

  1. either Party, if mutually agreed in writing between the Parties;

  2. us, if you breach the Contract and that breach has not been remedied within five (5) working days of being notified by us;

  3. you, if we breach a material term of the Contract and that breach has not been remedied or overcome within 10 working days of being notified by you; or

  4. us in accordance with clause 5 (c).

(b) On termination of the Contract you will:

  1. where the Contract is terminated under clause 8(a)(2), immediately pay to us the Balance and all of our additional costs resulting from the termination;

  2. where this document is terminated under clause 8(a)(4), immediately pay to us the Balance and all of our additional costs resulting from the termination.

9. GENERAL

(a) Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, the Contract and/or the Services (Dispute) without first meeting with the other Party to seek (in good faith) to resolve the Dispute (unless that Party is seeking urgent interlocutory relief, or the Dispute relates to compliance with this clause).

(b) Confidentiality: Both Parties will (and will ensure their Personnel) keep confidential, and not use or permit any unauthorised use of, any Confidential Information of the other Party without its prior written consent, except where the disclosure is required by law.

(c) Notices: Any notice pursuant to or in connection with the Document must be in writing addressed to the relevant address set out in this document and/or the Quote or to any email address used to communicate between us and you in the past or during provision of the Services. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

(d) Relationship of Parties: This document is not intended to create a partnership, joint venture or agency relationship between the Parties.

(e) Severance: If a provision of this document is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this document without affecting the validity or enforceability of the remainder of that provision or the other provisions in this document.

(f) Entire agreement: This document and the Quote contains the entire understanding and agreement between the Parties in respect of its subject matter.

(g) Amendment: This document may only be amended by agreement which agreement must be evidenced in writing.

(h) Survival: Clauses 3(d), 6, 7, 8, 9(a) and 9(b) survive termination of this Document.

Governing law: This document is governed by the laws of New South Wales.