TERMS AND CONDITIONS OF BUSINESS

1.1 Definitions

(a) For the purpose of this agreement “the Client” will mean whoever is engaging the photographer in photographic works. This shall include their respective assignees, sub-licensees and successor in title.

(b) For the purpose of this agreement “The Photographer” will mean James Gourley (James Gourley Photography: ABN:35 988 947 230), and shall where the context so admits include their respective assignees, sub-licensees and successor in title.

(c) “Photographs”, “Images” and “Works” means all photographic material furnished by the Photographer, whether negatives, prints, digital files or any other type of physical or electronic material.

(d)  “Commission” means any time/effort spent by the photographer to complete the task which they have been tasked with by the client.

(e) “Shoot” means any time where the photographer is on location in the process of making photographs.

(f) “Pre-Production” means any time spent on a commission before the shoot date.

(g) “Post-Production” means any photo-editing/manipulation on photographs taken as part of the commission.

(h) “Deliverables” means the edited, selected images sent by the Photographer to the Client for use under the terms of the agreed licences for the completion of the assignment.

1.2 These Terms & Conditions shall supersede and void any other agreements in place unless explicitly stated in writing and agreed by both parties.

1.3 Unless the Photographer is given prior written notice by the Client, the person placing or signing the order on behalf of the Client is deemed to be authorised to do so.

1.4 When a Client’s policy is not to rely on email confirmations, hardcopy paperwork must be supplied, if none is provided, then the email traffic will constitute a contract in law.

 

2. COPYRIGHT.

(a) The Author retains the entire copyright in the Photographs and Works at all times, throughout the World and in perpetuity unless explicitly assigned in writing and signed by the Photographer and the Client.

(b) Where a 'Buyout' is requested, it shall be taken to mean a request for 'exclusivity' and thus shall increase the value of the licence. A 'Buyout' will not transfer copyright to the Client unless explicitly agreed to in writing by both the photographer and the client.

(c) Where reproduction of Works has taken place and settlement has not been made, the Photographer will make such charges to the publisher of those images as falls within the Copyright Act 1968 (Cth)

3. OWNERSHIP OF MATERIALS.

(a) Title and rights to all Photographs remains the property of the Photographer.

(b) When the License to Use has expired all copies of the works must be destroyed immediately.

4. USE.

(a) Where no other licence is agreed to in writing between the photographer and the client the following Licence to Use will be applicable to any works or deliverables;

(i) The photographer will grant the client a limited non-exclusive right to use any deliverables for a period of one (1) year, for use online or in-print format starting from the date of payment of the relevant invoice(s).

(ii) The client has no right to licence, sublicence, syndicate, distribute or transfer this limited use licence to any other person or organisation without prior written consent of the photographer.

(iii) The client has no right to sell or make direct monetary gain from the works without prior written consent of the photographer. 

(iv) Any use outside of these terms will need to be negotiated and agreed in writing by the photographer and the client before any use will be allowed. Any use of the works without the correct licence will be chargeable at a rate per infringement.

(b) The License to Use comes into effect from the date of payment of the relevant invoice(s).

(c) No use may be made of the Photographs before payment in full of the relevant invoice(s) without the Photographer’s express permission in writing.

(d) Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Client is put into receivership or liquidation.

(e) Where restricted in the Agreement, permission to use the Photographs for additional purposes or periods will normally be granted upon payment of a further fee to be mutually agreed.

Note: A written agreement must be reached with the Photographer before the Photographs may be used for other purposes. Where uses of an image are made which breach the license to use penalty rate charges will be made.

(f) Any reproduction rights granted are by way of license only and no partial or other assignment of copyright shall be implied or given.

(g) On the Client’s death or bankruptcy or in the event of a Resolution, Petition or Order for winding-up being made against it, or if a Receiver or an administration is appointed, any license granted shall immediately cease.

5. EXCLUSIVITY.

(a) Unless agreed to in writing on the License to Use and the Invoice no exclusivity is given or implied to The Client.

(b) The Photographer retains the right in all cases to use or sell the Photographs unless explicitly agreed by both parties in writing.

(c) Exclusivity will not be unreasonably withheld but will only be granted upon written agreement with the Photographer before work commences.

6. CLIENT CONFIDENTIALITY.

(a) The Photographer will keep confidential and will not disclose to any third parties or make use of information communicated to him/her in confidence for the purposes of the photography, except as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the commission for the client.

7. INDEMNITY.

(a) It is the Client who must satisfy himself/herself/It’s self that all necessary rights, model releases, clearances or consents which may be required for reproduction of people, places or items depicted within any Works are obtained.

(b) It is acknowledged that the Photographer gives no warranty or undertaking that any such rights, releases or consents are or will be obtained whether in relation to the use of names, people, trade marks, registered or copyright designs or Works of art depicted in any photograph.

(c) The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed in writing before the shoot.

(d) In all other cases the Client shall indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.

(e) The Photographer will not be liable for any loss or damage, for any consequential loss of profit or income however caused, including negligence by the Photographer, James Gourley, their employees or agents or otherwise, and it is the Client’s responsibility to insure against such loss or damage.

8. PAYMENT.

  1. First time clients will be required to pay a 40% deposit at least 24 hours before the shoot date (or first pre-production date, whichever is earlier). Failure to pay the deposit will be counted as breach of contract and the Photographer will cancel the booking, however the full amount will remain payable.

  2. First time clients will be required to pay the remainder of the balance before the full set of photographs will be delivered. Full payment will be due within 7 days of the final shoot date and failure to pay within 7 days will lead to late fees (15% of remaining balance including GST) being added for each 30 day period not paid (15% for the first 28 days, an additional 15% of the remaining balance for each following 28 days). 

  3. Returning clients will be given 28 day payment terms, unless otherwise stated by the photographer. Failure to pay within 28 days will lead to late fees (15% of remaining balance including GST) being added for each 28 day period not paid (15% for the first 28 days, an additional 15% of the remaining balance for each following 28 days).

  4. 56 days after the invoice due date further charges may be made for any additional statement, letter (whether as an email, fax, etc) issued for the recovery of the outstanding debt of not less than $30 each and all other costs for the recovery of debts including bank charges.

  5.  Where a Client is a company and whether or not that company has gone into liquidation the individual directors will be responsible for all outstanding fees and costs in relation to the contract.

9. EXPENSES.

(a) Where extra expenses or time are incurred by the Photographer as a result of alterations to the original brief by the Client, or otherwise, the Client shall give approval to and be liable to such extra expenses or fees, in addition to the fees and expenses shown on the Estimate as having been agreed or estimated.

10. REJECTION.

(a) Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.

11. CANCELLATION & POSTPONEMENT.

(a) Any cancellations made within 48 hours of the shoot date (or first pre-production date, whichever is earliest) for commissions under 1 day or within 168 hours for commissions spanning multiple days a cancellation fee of 75% of the full quoted price (including GST) will be payable.

(a) A booking is considered firm as from the date of confirmation and accordingly the Photographer will, at their discretion, charge a fee of cancellation or postponement.

12. SUPPLY TO THIRD PARTIES.

(a) The license only applies to the Client and product stated on the License to Use.

14. ELECTRONIC STORAGE.

(a) Save for the purposes of production for the licensed use(s), the Photograph(s) may not be stored or archived in any form without the written permission of the Photographer.

(b) Digital Data is stored by the Photographer on the understanding that the Photographer is not responsible for the future integrity of that data, or of any failure to retrieve data from the Photographer’s archive.

(c) The Photographer will maintain sufficient backups of digital versions of the original and deliverable photographs up until the agreed deliverables have been transmitted to the client. After this time the Photographer will have no responsibility to maintain backups of any images created for the client. The photographer will not be held liable for the failure of the client to download images sent by the photographer or for failure to maintain sufficient backups once the final delivery has taken place. 

(d) If the client requires re-delivery of images that have already been delivered, a fee will be payable of $150+GST for each subsequent delivery by the photographer to the client.

15. PRODUCT DELIVERY

(a) Unless otherwise agreed in writing, the photographer will endeavour to deliver the agreed amount of edited images within 5 working days of the end of the shoot.

(b) The Photographer and the Client will agree before the commencement of the commission to the amount of images deliverable, however in circumstances where this is not stated before the completion of the shoot, the photographer will maintain sole discretion to deliver an amount they see fit to complete the commission.

(c) The photographer will undertake post-production on all deliverable images, however this will be limited to minor adjustments (lighting adjustments, spot and dust removal, minor cloning, cropping, colour adjustments). The amount of work required on images will be at the sole discretion of the photographer and any additional post-production requests will be chargeable at a rate of $100+GST per hour.

(d) If the client requests additional images or post production above and beyond the agreed deliverable amount the client will be liable to additional charges of $100+GST per hour for editing and $150+GST for delivery.

15. CURRENCY

  1. Any currency amount listed in this agreement is referring to Australian Dollars.

16. APPLICABLE LAW.

(a) This agreement shall be governed by the Laws of New South Wales, Australia.