In this Document, unless the context otherwise requires, capitalised terms have the meaning given to them in the Quote, and:
Confidential Information includes 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:
(b)registered or unregistered design, patent or trade mark 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.
(a)This Document takes effect on and from the date on which this Document is accepted in accordance with its terms (Effective Date). Any cancellations after the Effective Date must be made in accordance with clause 5 and 8.
(b)Subject to the terms of this Document, we will proceed with the provision of the Services in accordance with the Quote (or as otherwise mutually agreed between you and us).
(c)You acknowledge and agree that the Price, and all other amounts due under this Document, must be paid two weeks prior to the provision of the Services, as a precondition to the provision of the Services.
3. Our Obligations
(a)In consideration of you paying us the Price, we will provide the Services in accordance with this Document, 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) 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 there is a problem with the Services which is caused by a breach of this Document by us (Omission), and you have notified us of the Omission within 24 hours after completion of the Services, then, to the maximum extent permitted by law, our Liability arising from, or in connection with, the Omission will be limited to us remedying the Omission, or, at our discretion, refunding you that portion of the Price paid by you with respect to the Omission.
(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 extent permitted by law, you acknowledge and agree that:
- 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);
- 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;
- 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
- 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.
4. Your Obligations
(a)You agree to comply with this Document and all of our reasonable requests or requirements, including, but not limited to, for information about the Event or Services.
(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.
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 in accordance with the Payment Terms.
(g)If any payment has not been made in accordance with the Payment Terms, we may immediately cease providing the Services and/or charge you interest.
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, clause 8(a)(4) and 8(b)(3) will apply.
(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:
- sub-licensing the Intellectual Property to third parties;
- 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
- 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.
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;
(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:
- loss of, or damage to, any property or any injury to, or death of any person;
event or circumstance beyond our reasonable control (including technical disruption or failure);
- acts or omissions of you (or any of your guests or third parties engaged by you in connection with the Event);
- defect, error, omission or lack of use, suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services (including any deliverables); and/or
- 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; and
(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.
(a)This Document will terminate upon written notice by:
- either Party, if mutually agreed in writing between the Parties;
- us, if you breach this Document and that breach has not been remedied within 10 working days of being notified by us;
- you, if we breach a material term of this Document and that breach has not been remedied or overcome within 10 working days of being notified by you; or
- you, prior to the provision of the Services, and in accordance with clause 5.
(b)On termination of this Document, you will:
- where this Document is terminated under clause 8(a)(2), immediately pay to us the Price and all of our additional costs resulting from the termination;
- where this Document is terminated under clause 8(a)(3), immediately pay to us the Price for the Services performed up to the date of termination (and all other amounts due and payable to us under this Document);
- where this Document is terminated under clause 8(a)(4), immediately pay (or allow us to retain) the Booking Fee and all of our additional costs resulting from the termination;
- (and we will) immediately return to the other Party all property, including Confidential Information, belonging to the other Party; and
- (and we will) not use any Intellectual Property (including copyright) belonging to the other Party.
(c)Termination of this Document will not affect any rights or liabilities which a Party has accrued under it.
(a)Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Document (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 given under this Document must be in writing addressed to the relevant address in the Quote. 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.
Entire agreement: This Document contains the entire understanding and agreement between the Parties in respect of its subject matter.
(g)Amendment: This Document may only be amended by written instrument executed by all Parties.
(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.