- 1. INTRODUCTION
- 1.1. The Client wishes to appoint and book the Services of thePhotographer for the specific event/ shoot and on the Terms andConditions as set out in this Agreement.
- 1.2. The purpose of this Agreement is inter alia, to define the Terms andConditions of this Agreement and to define the Services to berendered by the Photographer to the Client accordingly.
- 1.3. The Client agrees that Wolff’s Eye Photography’s appointmentshall be as the sole and exclusive Photographer for the Shootrelating to the specific event and/or function of the Clientaccordingly.
- 1.4. The Client appoints Wolff’s Eye Photography as a principal and notas an agent of another party. The Client acknowledges thathe/she/it/they remains solely responsible for complying with theprovisions of this Agreement, notwithstanding any agreements itmay have with third parties in relation to the Purpose of thisAgreement.
- 1.5. The Parties are furthermore desirous to record such agreement forthe Services to be rendered, in writing, and now therefore theParties agree to the below Terms and Conditions of thePhotographer, which relates to such Services to be rendered byhim/her/them/ it, to the Client accordingly.
- 1.6. This Agreement contains provisions which limit Wolff’s EyePhotography’s liability to the Client. These provisions may create adirect liability for the Client in some instances and the Client is thusherewith requested to ensure that this Agreement is read andunderstood prior to signing thereof.
- 2. DEFINITIONS
- In this Agreement and the introduction, the following terms shall have themeanings set out below;-
- 2.1. “EFFECTIVE DATE” means the on which date this Agreement comesinto operation, being the date on which the Photographer’s Termsand Conditions together with the Quotation is duly accepted andsigned by the Client, which shall also be the Signature Date.
- 2.2. “COMMENCEMENT DATE” means the date on which thisAgreement is accepted and the date on which the Client pays thedeposit to the Photographer in terms of the Quotation sent.
- 2.3. “SERVICE DATE” means the _______ day of_______________________________ 20_____, being the date onwhich the Services shall be rendered by the Photographer to theClient accordingly.
- 2.4. “AGREEMENT” means this Agreement, as well as any and/or allAnnexures/ Addendums hereto, as may be amended from time totime, and which will be valid for the duration of the Agreement,unless extended and/or otherwise agreed upon between theParties in writing. It will thus be these Terms and Conditions of thePhotographer accordingly and which in turn is duly agreed to by theClient.
- 2.5. “THE CLIENT” means the signatory party to this Agreement and asspecified in the Client Information Sheet and to whom theQuotation directly relates. Furthermore, same shall refer to theperson or organization, its representatives, successors, assignees,agents and affiliates requesting the provision of the Photographer’sServices and supply of the Photographs/ Material.
- 2.6. “THE PHOTOGRAPHER” shall refer to the person(s) and/ororganization who has been requested by the Client to take andsupply the Photographs/ Material and to render the Servicesto theClient, for the specific event/shoot or in line with the Purpose whichthe Client so requires. In this instance the Photographer shall beWolff’s Eye Photography, who also owns any and/or all copyrightin terms of any and/or all of the Photographs/ Material producedby him/her/them/it or by any employee and/or subcontractorand/or substitute of Wolff’s Eye Photography.
- 2.7. “THE SERVICE PROVIDER” shall mean THE PHOTOGRAPHER interms hereof.
- 2.8. “THE PARTIES” shall mean the Client and the Photographer whoare jointly herein referred to as the Parties accordingly.
- 2.9. “MATERIAL” means any and/or all photographic material, being infilm, print or electronic format, duly supplied by the Photographerto the Client. The afore shall also be referred to as “THE SERVICES”and/or “THE PHOTOGRAPHS/ MATERIAL” to be rendered and/orsupplied by the Photographer to the Client in terms hereof. Theafore shall furthermore include the details as contained in theClient’s brief to the Photographer accordingly.
- 2.10. “THE CLIENT BRIEF” shall mean the brief provided to thePhotographer, by the Client which contains the specific Services tobe rendered by the Photographer to the Client, including but notlimited to, event/ shoot details, special requests, location wherethe event/ shoot shall take place and/or any other details to besupplied by the Client, to the Photographer, in order for thePhotographer to render the Services.
- 2.11. “THE CLIENT INFORMATION SHEET” shall mean the informationsheet completed by the Client and provided to the Photographerwhich includes the Client’s information duly supplied to thePhotographer and which directly relates hereto and which shallaccordingly be an annexure to this Agreement.
- 2.12. “EVENT/ SHOOT” means the location, place and the Purpose forwhich the Photographer has been appointed in order to renderhis/her/their/its Services in terms hereof.
- 2.13. "FEES" shall mean the fees and charges payable by the Client to thePhotographer, in terms of this Agreement and as have been agreedto at the Commencement and/or Effective Date, in terms of theQuotation provided to the Client accordingly and to which theseTerms and Conditions specifically relate.
- 2.14. “QUOTATION” means the Quotation for the Fees, which has beenprovided to the Client by the Photographer, and which is dulypayable by the Client to the Photographer and to which these Terms and Conditions relate and specifically pertaining to theServices to be rendered by the Photographer, to the Clientaccordingly.
- 2.15. “THE ACT” shall mean the Copyright Act, Act No.98 of 1978, asamended.
- 2.16. “DAY” means any day of the week, including Saturdays, Sundaysand Public Holidays.
- 2.17. "TIME AND APPLICABLE ADDITIONAL RATES" shall mean toinclude, the time and applicable additional rates to be charged bythe Photographer, which is in addition to the Quotation of Fees,where and if applicable.
- 2.18. “TRADEMARKS” means all current and/or future trademarksand/or other non-specified and/or specified Intellectual PropertyRights which relate to the brand, as well as corporate identity of theService Provider and/or the Client.
- 2.19. “THE PURPOSE” shall be in line with the Services to be provided bythe Photographer and for which he/she/they/it has been dulyappointed for by the Client. The afore shall also mean to includebut not be limited to, any discussions, communications and/ornegotiations which take place in written format or by way of oralcommunication between the Parties in terms of this Agreement,concerning or in connection with any and/or all instructionsprovided by the Client to the Photographer for any and/or allServices provided in terms of this Agreement.
- 2.20. “INTELLECTUAL PROPERTY” shall mean but not be limited to,patents, utility models, rights to inventions, copyright, andneighbouring and related rights, trademarks and service marks,business names and domain names, rights in get-up and tradedress, goodwill and the right to use and protect the confidentialityand Confidential Information (including the “know-how”), and allother Intellectual Proprietary Rights and all similar or equivalentrights or forms of protection which subsists or will subsist now or inthe future, locally and/or in any part of the world.
- 2.21. Expressions in the singular also denote the plural, and vice versa.
- 2.22. Words and phrases denoting natural persons refer also to juristicpersons, and vice versa.
- 2.23. Pronouns of any gender include the corresponding pronouns of theother gender.
- 2.24. Clause headings appear in this Agreement for reference purposesonly and shall not influence the proper interpretation of the subjectmatter.
- 2.25. The use of the word "including" followed by a specific example(s)shall not be construed as limiting the meaning of the generalwording preceding it and the eiusdem generis rule shall not beapplied in the interpretation of such general wording or suchspecific example(s).
3.1. It is agreed that this Agreement is entered into between thePhotographer and the Client accordingly.
3.2. It is furthermore agreed between the Parties that thePhotographer shall render the Services to the Client for which thePhotographer has been duly appointed in terms hereof.
4. COMMENCEMENT, DURATION AND TERMINATION
4.1. This Agreement shall commence on the Commencement Date andshall, unless otherwise agreed to in writing between the Parties,terminate on the completion of the Services duly rendered by thePhotographer to the Client accordingly.
4.2. Either of the Parties hereto may terminate this Agreement byproviding the other with 1 (one) month’s written notice.
4.3. In the event of either party hereto being in breach of thisAgreement and the other party electing to terminate thisAgreement, same shall be done in terms of the breach provisionscontained herein below.
4.4. In the event this Agreement is terminated for any reasonwhatsoever, the following clauses shall survive termination:
4.4.1. Clause 9 pertaining to payment terms, fees and termsassociated with same;
4.4.2. Clause 12 pertaining to breach;
4.4.3. Clause 13 pertaining to limitation of liability & indemnity;
4.4.4. Clause 14.5 – 14.5.1. Pertaining to governing law andjurisdiction; and
4.4.5. Clause 14.28. – 14.32.2. Pertaining to domicilium andnotices.
5.1. The Photographer shall, during the subsistence of this Agreement,render the Services to the Client.
5.2. The Services which the Client has requested and which thePhotographer has agreed to render, are detailed in the Quotationprovided to the Client as well as in terms of the Client’s briefprovided to the Photographer, read together with these Terms andConditions.
5.3. The Photographer shall not be required to render any service(s)other than the Services provided for herein and in terms of theQuotation and Client’s brief, unless otherwise agreed to in writingbetween the Parties.
5.4. The Quotation and/or Client’s brief may be amended or whollyreplaced by the Parties, provided that each amended and/orreplaced version of the Quotation and/or Client’s brief shall beeffected in writing and must be signed by both of the Partiesaccordingly.
5.5. Quotation and/or Client brief amendments and/or replacementsmay, at the Photographer’s discretion, require consequentialchanges to Fees payable and delivery timeframes for the Servicesdescribed in the amended and/or replacement Quotation and/orClient brief.
5.6. The Photographer shall duly notify the Client of any such changesin writing and the Services based on such amended and/orreplacement Quotation and/or Client brief shall then commenceand be of force and effect on acceptance of such changes by theClient accordingly
5.7. Each version of the relevant Quotation and/or Client brief shallbecome binding on the Parties upon signature of each version ofsame and shall be governed by these Terms and Conditions.
5.8. The Quotation and/or Client brief, as agreed to, alternatively ashave been amended and/or replaced and duly signed by the Partieshereto, shall specify the Services to be rendered by thePhotographer, which Services are subject to these Terms andConditions, as well as any other responsibilities of the Partiesrespectively.
5.9. The Parties expressly record that each of the Services constitutes aseparate and distinct service, and nothing set out in this Agreementshall be construed as obliging the Photographer to render all suchServices as a single, indivisible service.
5.10. The Photographer warrants that he/she/ they/ it has the expertiseand resources to render the Services as provided for herein andshall render the Services with due care, diligence and skill, and in accordance with the industry standards as expected of experts inthe Photographer’s area of expertise.
5.11. The Photographer reserves the right to edit and release content,which the Photographer deems, in his/her/their/its solediscretion, to be within the Photographer’s artistic standards andof sufficient professional quality which shall thus merit such releaseto the Client accordingly.
5.12. The Client has no right to reject work on the basis of style orcomposition, unless a rejection fee has been agreed in advancebetween the Parties in writing5.12.1. In addition to Clause 5.12. above, the remuneration mustbe paid in full by the Client to the Photographer, even ifthe ordered and/or delivered Photographs/ Material arenot used.
5.13. The Photographer herewith reserves the right to retain all of theClient’s Photographs/ Materials in his/her/their/ its possession,until such time as the full amount due and owing to thePhotographer in terms of the Quotation supplied, has been paid infull by the Client accordingly. Furthermore, the usage licenseprovided to the Client, to reproduce images as created by thePhotographer will also be revoked until such time as full amountdue and owing to the Photographer in terms of the Quotationsupplied, has been paid in full by the Client.
5.14. THIRD PARTY SERVICES
5.14.1. The Services may incorporate the use of third-partywebsites and/or services. Such uses may include, but arenot limited to, publishing digital content on the web andmaking the content available for sharing through socialnetworks.
5.14.2. The Client acknowledges that the Photographer does notrender legal services and that the Client shall remainsolely responsible for familiarising itself with andcomplying, as well as ensuring compliance, with the termsand conditions governing the use of those third-partywebsites and/or services.
5.15.1. In the event that the Photographer is unable to renderpart or all, of the Services due to illness, incapacity or anemergency preventing him/her/ them/ it from doing so,the Photographer shall appoint a substitutephotographer to render those Services the Photographeris unable to render.
5.15.2. The Photographer warrants that the substitutephotographer referred to in Clause 5.15.1 above shall besuitably qualified professional photographer havingregard to the nature of the Services such substitutephotographer shall be appointed to render.
5.16.1. Work is complete when the Photographer provides theClient with the agreed to Services and subsequentPhotographs/ Material purchased in terms of the Client’sQuotation and/or brief duly paid and supplied.
5.16.2. The completed Services shall include a Google Drive link,access to a web gallery, and/or prints (either in printedand/or electronic format), which shall be in line with theClient’s Services/ brief specifications. Such workcompleted shall contain all of the RAW or JPEG imagesphotographed on behalf of the Client.
5.16.3. Watermarked Photographs/ Material and/or Proofsthereof may not be copied from the web gallery and/orGoogle Drive link or used in any form, without express written permission from the Photographer to the Clientaccordingly.
5.17. THE CLIENT’S BRIEF AND THE ASSIGNMENT
5.17.1. It is herewith acknowledged, accepted and agreed tobetween the Parties that, it is the Client’s responsibilityto give the Photographer a full written brief of what theClient requires in terms of the Services to be rendered bythe Photographer to the Client accordingly.
5.17.2. The Clientis herewith informed, where specific details aremissing in the Client brief, the Client undertakes toaccept the Photographer’s interpretation of the scope ofthe Services to be rendered in toto.
5.17.3. The Parties herewith acknowledge, accept and agree thatthe Client is responsible for having a representativepresent at all times when the assignment and/or theServices is/are being executed, in order to approve styleand content of same. Where no representative is present,the Client shall accept any and/or all decisions made bythe Photographer in relation to execution of the Client’sbrief.
6. COPYRIGHT AND LICENCING
6.1. All Copyright in the Photographs/ Material created and producedby the Photographer, pursuant to this Agreement, solely vests withand is accordingly retained worldwide by the Photographer, at alltimes, and nothing contained in this Agreement shall be deemed asa release, transfer, assignment and/or other disposal of thePhotographer’s rights in the Photographs/ Material.
6.2. No other person or third party hereto, including the Client, willenjoy any rights under the Copyright in and to such Photographs/Material, save as may be specifically granted in this Agreement, orotherwise agreed to between the Parties, in writing.
6.3. Without derogating from the generality of the above, thePhotographer hereby permits the Client to use or make use of thePhotographs/ Material for the Client’s personal and noncommercial use, and in the following manner only, unless otherwiseagreed to in writing between the Parties, namely:
6.3.1. To reproduce, print and copy the Photographs/ Materialfor family and/or friends or personal use; and
6.3.2. To post, blog and/or display the Photographs/ Materialon the Client’s personal and non-commercial mediaand/or social network forums, provided that thePhotographer must be credited for the use of andproduction of the Photographs/ Material, at all times.
6.3.3. Non-commercial use shall include but not be limited topersonal web pages and prints of the images kept or givento friends and family.
6.3.4. Commercial use shall include but not be limited to anybusiness web page, any use of images for advertising orpromotion, any other use that would be considered ascommercial and financially beneficial to the user.
6.4. Notwithstanding the provisions of Clause 6.1. to 6.3.4. above, it isexpressly agreed that the Client will not acquire any rights underthe Copyright in and to the Photographs/ Material and, that allrights under the Copyright in such Photographs/ Material isexclusively reserved to the Photographer in toto.
6.5. The Client and/or any third party hereto, is not permitted to sell,publishing, reproduce or otherwise provide and/or distribute thePhotographs/ Material, without the express written permission ofthe Photographer. Prior written consent must be obtained from the Photographer for the use of the Photographs/ Material for anypurpose other than for the Client’s personal and non-commercialuse accordingly.
6.6. The Photographer further retains the right to claim authorship ofthe Photographs/ Material and to object to any distortion,mutilation and/or other modification of the Photographs/Material, where such action is or would be prejudicial to the honourand/or reputation and/or good name of the Photographer.
6.7. The Client herewith acknowledges, accepts and agrees that thePhotographer is the author of the Photographs/ Material and isthe owner of the Copyright associated therewith, irrespective of thestipulations of Sections 21 (1)(c) and 21 (1)(e) of the Act, asamended.
6.8. In accordance with Section 21 (1)(e) of the Act, as amended, theprovisions of Section 21 (1)(c) shall not apply to the Photographs/Material to be made in terms hereof and the Photographer will bethe author of the Photographs/ Material and the Copyrightsubsisting therein.
6.9. The Photographer supplies the technical and artistic ability toillustrate an idea photographically and duly sells the right toreproduce those Photographs/ Material in a given context. Noproperty or Copyright in any Photographs/ Material shall pass tothe Client, whether on its submission, or on the Photographer‘sgrant of reproduction rights, in respect thereof.
6.10. Any reproduction rights granted by the Photographer, are by wayof license and for such specific purpose and no partial or otherassignment of Copyright shall be implied.
7. TRANSFER OF OWNERSHIP
7.1. Ownership in the physical Photographs/ Material ordered by theClient shall pass to the Client only when all amounts due by theClient to the Photographer have been paid, in full notwithstandingdelivery of any of the aforesaid the Photographs/ Material to theClient.
8.1. The Client herewith permits and allows the Photographer todisplay any of the Photographs/ Material covered by thisAgreement and to generally promote the Photographer’s businessby means of advertising, publicity material, websites, exhibitions,competitions, magazine articles, and other such media, providingthat the images are used lawfully and without damage to the Client,by the Photographer accordingly.
8.2. It is specifically agreed to between the Parties that thePhotographs/ Material may be used on Facebook, and/ or any suchother social media forums as is desired by the Photographer, andthat the Client may be tagged, or otherwise identified, unlessotherwise agreed in writing between the Parties.
9. ON THE EVENT DAY
9.1. Sole Rights: The Photographer shall be the sole professionalphotographer of the event/ shoot. The Photographer will not beheld liable for over exposed photos caused by flash or lighting fromother cameras/ video cameras.
9.2. Special Requests: If there is anything uniquely different, or anyspecific and distinctive request, then such request must to bebrought to the attention of the Photographer in writing and shouldform part of the Client’s brief.
9.3. Requested Photographs: The Photographer will honour allPhotographs/ Material requested and agreed in advance, providedthe following factors are met, weather and allocated timepermitting, availability and co-operation of the person(s)concerned.
9.4. Coverage: The Photographer will not be held responsible for thelack of coverage caused by the Client or their party not being ontime, or by any obstructed view caused due to restrictions onphotography at the event/ shoot. The Photographer cannotundertake nor guarantee any specific picture nor incorporate anyspecific background, location or group arrangement, whereapplicable at the event/ shoot.
9.5. Where restrictions or limitations are set by any official or personpossessing the correct legal authority to do so, the Photographershall not be held responsible for non-fulfilment of this Agreement.
9.6. Weather Changes: Weather permitting, all Photographs/ Materialrequested by the Client will be taken as agreed. In the event of rainor any form of weather disturbance, the Photographer will makethe necessary changes in the photographic session and may not beheld liable for the lack of coverage caused by any weatherdisturbance and/or responsible for any disappointment caused,due to the weather.
9.7. Meals (Only applicable at wedding event/ shoot): The Client isrequired to provide meals for the Photographer and one assistant(if applicable) during the time when the dinner is being served tothe guests when it is applicable to this kind of event/ shoot. Theafore may be served in the dining room or at another location in thereception venue. It is requested that the Photographer andassistant be seated in the dining room if at all possible, so as to beable to continue photography during the meal. Furtherarrangements and the practicality of this arrangement will be asdiscussed between the Client and the Photographer.
10. MODEL RELEASE AND EXCLUSIVITY
10.1. The Client hereby grants to the Photographer and its legalrepresentatives and assigns, the irrevocable and unrestricted rightto use and publish the Photographs/ Material of the Client foreditorial, trade, advertising and any other purpose and in anymanner and medium as well as to alter same without restrictionand to Copyright the same.
10.2. The Client hereby releases the Photographer and its legalrepresentatives and assigns from all claims and liability relating tosuch Photographs/ Material.
10.3. The Photographer retains the right to use the Photographs/Material in any manner, at any time and in any part of the world forself-promotional purposes. During the period of the usage licensegranted to the Client, the Client is authorised to publish thePhotographs/ Material to the exclusion of all other persons, otherthan the Photographer’s right to self-promotion as stated above.
10.3.1. In addition to Clause 10.3. above, the Photographer shallbe entitled to use the Photographs/ Material for anypurpose, including but not limited to, selling thePhotographs/ Material at his/ her/ their/ its discretion,unless specifically requested not to or otherwise agreedto in writing between the Parties accordingly.
11. PAYMENT TERMS, FEES AND TERMS ASSOCIATED WITH SAME
11.1. Any and/or all Services to be rendered by the Photographer shallbe quoted for and such Quotation shall be supplied to the Clientfor payment thereof.
11.2. A 50% (fifty percent) NON-REFUNDABLE deposit is required toconfirm any booking of the Photographerin terms of the Quotationsent to the Client by the Photographer accordingly.
11.3. Bookings are made on a strictly first come first served basis. Dateswill ONLY be secured upon receipt of the deposit. The deposit willbe at the discretion of the Photographer and at the time of theAgreement being signed and the Quotation being accepted by theClient. Payment of the Deposit is thus essential for the Client’sbooking to be secured for such applicable date.
11.4. The balance of the amount due to the Photographer in terms of theaccepted Quotation sent to the Client is payable on the day of theshoot/ event.
11.5. No Photographs/ Material will be released by the Photographer tothe Client, until such time as the final balance of the amount dueand owing to the Photographer in terms of the Quotation is paid infull by the Client. For Example: The Photographer will be assignedto a project and will arrives at the Client’s location in order toperform the Services accordingly. Upon completion of such you willbe invoiced, and payment is due.
11.6. Payment can be made by Electronic Funds Transfer (EFT) or othermeans agreed to between the Parties, prior to the event/ shoottaking place.
11.7. In the event that the Photographer incurs additional expenses dueto changes in the original Client brief or by circumstances beyondthe Photographer’s control or for any other reason whatsoever asa result of the Client’s conduct then, the Client agrees to pay suchreasonable expenses and/or fees of the Photographer, in terms ofthe normal rates associated with same and in full upon receipt ofthe Photographer’s quotation/invoice pertaining thereto.
11.8. The Photographer reserves the right to charge interest on anyand/or all overdue invoices and at a rate of prime plus 2,5% (twopoint five percent) per annum, compounded monthly, until suchtime as final payment is received from the Client.
11.9. CANCELLATION FEES
11.9.1. General Cancellations: The Client’s deposit is nonrefundable, however same will be refunded I the event ofcancellations of confirmed bookings being made no lessthan 2 (two) weeks prior to the booking date, otherwisethe full fee will be charged by the Photographer.
11.9.2. Cancellations due to Weather: The reason and type ofweather permitting cancellation must be specified by theClient. Same day cancellation will be charged at thePhotographer’s full fee in terms of the Quotationprovided to the Client, unless otherwise agreed tobetween the Parties and cancellations within 24 (twentyfour) hours prior to the day, the 50% deposit paid by theClient shall be forfeited to the Photographer.
11.9.3. In the event of any of any of the above-mentionedcancellations becoming applicable, additional expensesincurred by the Photographer as per Clause 11.6. above,shall become applicable and payable by the Client in full.
11.10.1. Unless otherwise agreed to in writing between theParties, the Client will be liable for the full fee due interms of the Quotation provided to the Client by thePhotographer, in the event of the postponement of theevent/ shoot occurring on the same day or less than 24 (twenty four) hours prior to the event/ shoot takingplace; and
11.10.2. 50% (fifty percent) of the fee shall be due, being theamount equivalent to the deposit paid by the Client to thePhotographer, in the event of the postponementoccurring 24 (twenty-four) hours prior to the event/shoot taking place.
11.11. Fees for cancellations and postponements will apply irrespectiveof the reasons for them, specifically including but not limited toweather conditions, acts of God, nature, war, terrorism, civildisturbance, and the fault of a third party.
11.12.1. The Photographer shall be entitled to charge the Clientfor additional fees in circumstances where the event/shoot overruns the initial period which was duly quotedfor. same shall also be applicable in circumstances whereoverruns occur due to such circumstances being beyondthe control of the Photographer, including but not limitedto instances where the Client requests additionalPhotographs/ Material over and above the Client’soriginal brief or where the event/ shoot overruns thetime for which the Photographer originally quoted for.
11.12.2. In the event where the Services cannot be completedwithin the agreed amount of time or in terms of theQuotation provided to the Client by the Photographer,the Photographer and the Client herewith acknowledges,accepts and agrees that the Quotation shall accordinglybe amended in writing, in order to provide for suchadditional time as required to complete the Service. TheClient shall then be liable to remunerate thePhotographer for such additional charges in full andimmediately upon completion of the Service and finalInvoice sent by the Photographer.(The following example shall apply in terms of Clause12.11. to 12.11.2 above, namely: In the event where thePhotographer has begun the event/ shoot and the timeagreed to in the original Quotation is not adequate tocomplete the Services to be rendered, the Photographer orthe Client can verbally or in writing request more time beadded to the Quotation. A representation will be made onthe Invoice reflecting the day, time and identity of theindividual who requested and approved the additionaltime. If the Client does not approve the requested change,the Services shall be considered as complete at theexpiration of the time allocated to the Services in terms ofthe original Quotation, Payment for the full quotedamount will be due on Invoice by the Photographer,irrespective of whether the Photographs/ Material havebeen created or provided to the Client. The Client willreceive all final Photographs/ Material upon receipt ofpayment of the full and final amount due and owing by theClient.)
11.13. SHELF AND/OR KILL FEES
11.13.1. In the event where the Client elects to “shelve” or “kill”the event/ shoot, after the Client’s brief has been metand the Services have been rendered by thePhotographer and by the agreed to date, full payment ofthe amount which is due and owing to the Photographerin terms of the Quotation must be made by the Clientaccordingly.
11.13.2. Should the Photographs/ Material not be publishable,through no fault on the Photographer’s part, the Clientagrees to pay the full amount which is due and owing tothe Photographer in terms of the Quotation provided tothe Client.
12.1. Subject to any other provision of this Agreement providing for theremedy of any breach of any provision hereof, should either Party(“the Offending Party”) commit a breach of any provision of thisAgreement and fail to remedy such breach within 10 (ten) days ofreceiving written notice from the other Party (“the AggrievedParty”) requiring the Offending Party to do so, then the AggrievedParty shall be entitled, without prejudice to its other rights in lawto;–
12.1.1. Cancel this Agreement, provided that the breach inquestion is a material breach going to the root of thisAgreement; or
12.1.2. The Photographer shall be entitled to summarily cancelthis Agreement, without notice to the Client and repossess the Photographs/ Materials already delivered tothe Client, where the breach was due to the Client’sbreach of the terms contained in this Agreement; or
12.1.3. Claim specific performance of all of the Offending Party’sobligations whether or not due for performance; and
12.1.4. In either event, without prejudice to the Aggrieved Party’sright to claim damages.
12.2. Either Party shall be entitled to summarily terminate thisAgreement in the event of the other Party being placed inliquidation or under judicial management, whether provisionally orfinally, or in the event of the other Party entering into acompromise with its creditors generally.
12.3. All amounts due by the Offending Party in terms of this Agreementshall, in the circumstances contemplated in this Clause 12,immediately become due and payable to the Aggrieved Party.
13. LIMITATION OF LIABILITY & INDEMNITY
13.1. In the unlikely event of a total Photographic/ Material failureand/or or cancellation of this Agreement, by either party hereto, orin any other applicable circumstance(s), the liability of one party tothe other shall be limited to the total value of the Agreementand/or Quotation supplied by the Photographer to the Clientaccordingly.
13.2. Neither party hereto shall be liable to the other, in terms hereof,for indirect and/or consequential loss whatsoever.
13.3. Without diverting from the generality of Clause 13.1. and 13.2.above, the Photographer warrants that he/ she/ they/ it takes theutmost care, with respect to exposure, transportation, andprocessing the Photographs/ Material, however, in the unlikelyevent that any Photographs/ Material may be damaged in theprocessing thereof or may be lost through camera and/or othermedia malfunction, may be lost in the mail, or otherwise lost and/ordamaged without any fault on the part of the Photographer, or inthe event where the Photographer fails to perform, for any otherreason beyond the Photographer’s control, the Photographer’sliability is limited to the return of all payments received by theClient in terms of such event/ shoot.
13.4. The Client herewith expressly indemnifies and holds thePhotographer harmless against all liability, claims and expenses, including attorney’s fees, arising from the Client and/or any thirdparties use of the Photographer’s Photographs/ Material and/orany loss, damage or misuse of any of the Photographs/ Materialsupplied by the Photographer, granted that there is no fault on thepart of the Photographer.
13.5. If there is any failure to capture certain images that you haverequested or that were discussed at our planning meeting, suchomissions shall not void this agreement nor be a breach of thisagreement and will not cause any compensation to be made to theClient and the Photographer shall not be liable for same.
13.6. In the unlikely event of the Photographer being unable to attend tothe wedding due to any cause beyond the Photographer’s control,the Photographer reserves the right to appoint anotherphotographer to attend to your wedding on their behalf toundertake the wedding photography to his / her best ability. If thesituation should occur and a suitable replacement is not found,responsibility and liability of the Photographer is limited to thereturn of all payments received for the event package.
13.7. Re-shoots may be arranged if practicable, but the Photographerwill not be responsible for any further cost’s ancillary hereto.
14.1. The Parties signing this Agreement expressly warrants his/ her/their/ its authority to do so respectively and confirms that he/ she/they /it are duly authorised to sign this Agreement accordingly andwith the necessary capacity.
14.2. Neither party hereto relies on entering into this Agreement, on anywarranties, representations, disclosures and/or expressions ofopinion, which have not been incorporated into this Agreement, aswarranties and/or undertakings.
14.3. This Agreement constitutes the entire Agreement andunderstanding between the Parties, and supersedes all previousAgreements, understanding and undertakings in such respect.
14.4. Each party shall not be permitted, during the term of thisAgreement and for a period of 12 (twelve) months following thetermination of this Agreement, for whatever reason, directly orindirectly solicit or offer employment to any employee,representative or consultant of the other party and therefore notemploy or contract in any manner with any employee,representative or consultant of the other party accordingly.
14.5. The interpretation, construction and effect of this Agreement shallbe governed and construed in all respects, in accordance with theLaws of South Africa and the Parties hereby submit to the exclusivejurisdiction of the South African Courts.
14.5.1. In addition to Clause 14.5. above, the Parties herebyconsent to the jurisdiction of the district Magistrate’sCourt having jurisdiction, in terms of either Section 21,28 and/or 45 of the Magistrate’s Court Act 32 of 1944 asamended, which ever Section may become applicable tothe given circumstance(s), in respect of all legalproceedings pertaining to this Agreement,notwithstanding that the value or subject matter of thecourt proceeding may exceed the jurisdiction of suchCourt.
14.6. Where a typo and/or clerical error may have existed during thedrafting of this Agreement, the true intention and correctinterpretation of such will however be applied and it is thusherewith agreed between the Parties that such typo and/or clericalerror shall not deem such provision null and void.
14.7. Upon such determination that any clause or part of a clause of thisAgreement is found to be invalid, illegal or incapable of beingenforced, the Parties hereto shall negotiate in good faith to modifythis Agreement, so as to give effect to the original intent of theParties. Neither party shall be regarded as having waived, or beprecluded in any way from exercising, any right under or arisingfrom this Agreement by reason of such party having at any timegranted any extension of time for, or having shown any indulgenceto, the other party with reference to any payment or performancehereunder, or having failed to enforce, or delayed in theenforcement of, any right of action against the other party.
14.8. No alteration or variation of these terms and conditions shall apply,unless expressly agreed to, in writing, and duly signed by the Parties,including this Clause.
14.9. In addition to the above, it is herewith agreed that thePhotographer shall supply Services to the Client and as providedfor in this Agreement together with the Quotation and Client brief.The Parties thus herewith agree that any Services supplied by thePhotographer to the Client shall, be subject to the terms andconditions as contained in this Agreement.Conduct
14.10. The Client shall be responsible for the behaviour of any personsaccompanying him/ her/ them at the event/ shoot.
14.11. The Photographer reserves the right to terminate the event/ shoot,without notice, should the Photographer deem the Client’sbehaviour or that of any person accompanying him/ her /them, tobe unruly or unsafe.
14.11.1. In addition to Clause 14.10. and 14.11. above, and wheresuch an instance arises, the Photographer reserves theright to amend his/ her/ their/ its fees and expenses asprovided for in these Terms and Conditions. The Clientwill however remain liable to fully reimburse thePhotographer or his/ her/ their/ its agents for any lossand/or damage caused to the Photographer’s propertyand/or equipment, where applicable and as a result of theconduct of the Client or any person accompanying him/her/ them.Photographic Integrity and Alterations
14.12. The Client will not be permitted to make any alterations, including,but not limited to, additions, subtractions, or adaptations, withrespect of the Photographs/ Material produced by thePhotographer, without the prior written consent of thePhotographer.
14.13. The Client is however allowed to attend to normal reproductionadjustments of colour, contrast, brightness, sharpness, andcropping, which is thus herewith expressly permitted.
14.14. Any alteration or modification of the Photographs/ Material willnot constitute a work of joint authorship between thePhotographer and the Client.Legal Costs.
14.15. Any legal costs incurred by the innocent party, in the recovery ofany outstanding monies due or for any legal action taken forwhatsoever reason, as may be deemed appropriate, against theguilty party, shall be due and payable by such guilty party (againstwhom the legal action was/is instituted) on an attorney-and-ownclient scale and in the case of any indebted amount becoming dueand payable, the Parties hereto agree that such indebted amountshall bear interest as provided for above and which shall beapplied until such time as the debt is recovered in full.
14.16. The guilty party shall immediately reimburse the legal fees, to theinnocent party, upon receipt of the Attorney or Legal Representative’s Invoice, sent to the guilty party by the innocentparty, accordingly.Dispute Resolution
14.17. In the event of any irresolvable dispute in the interpretation of theterms of this contract, the Parties agrees to submit the dispute toMediation first and in the event of the Mediation beingunsuccessful the matter shall be submitted for arbitration, whichdecision, either by way of Mediation or Arbitration shall be final.Severability
14.18. Neither party shall be regarded as having waived, or be precludedin any way from exercising, any right under or arising from thisAgreement by reason of such party having at any time granted anyextension of time for, or having shown any indulgence to, the otherparty with reference to any payment or performance hereunder, orhaving failed to enforce, or delayed in the enforcement of, any rightof action against the other party;
14.19. The failure of either party to comply with any non-materialprovision of this Agreement shall not excuse the other party fromperforming the latter’s obligations hereunder fully and timeously.
14.20. If any clause or part of a clause of this Agreement is found to beinvalid, illegal or incapable of being enforced by any rule or law, orpublic policy, all other clauses and provisions of this Agreementshall nevertheless remain in full force and effect.
14.21. Upon such determination that any clause or part of a clause of thisAgreement is found to be invalid, illegal or incapable of beingenforced, the Parties hereto shall negotiate in good faith to modifythis Agreement so as to give effect to the original intent of theParties.
14.22. In the event that the Parties cannot negotiate in good faith thematter will be attended to as per Clause 14.17 above.Whole Agreement
14.23. This is the entire Agreement between The Parties.
14.24. Neither of the Parties hereto rely in entering into this Agreementon any warranties, representations, disclosures or expressions ofopinion which have not been incorporated into this Agreement aswarranties and/or undertakings.
14.25. No variation, amendment or consensual cancellation of thisAgreement, including this Clause, shall be of any force or effectunless reduced to writing and signed by the Parties.
14.26. The Parties hereto acknowledge, accept and agree to perform, orprocure the performance, of all further things, and execute anddeliver, and/or procure the execution and delivery, of all furtherdocumentation, as may be required by law or as may be desirableand/or necessary to implement such and thus to give effect to thisAgreement and the purpose of the Agreement contemplatedherein.Force majeure (Acts of God):
14.27. The due performance of this contract is subject to alteration orcancellation by either party owing to any cause beyond theircontrol. In such an event the Photographer will not be liable to theClient(s) and/or any further person in respect of any loss and/ordamage of whatsoever nature caused by, or arising from any of thefollowing circumstances:
14.27.1. The loss, damage, destruction or theft of any property onthe venue; and/or
14.27.2. Any act or circumstance, save for gross negligence by thePhotographer, causing the loss, damage, destruction,theft and such other related events of photographicmaterial (including camera equipment); and/or
14.27.3. Loss or damage resulting from or related to the use of anyequipment on the venue, including but not limited to furniture, cutlery and crockery, sound equipment andphotographic equipment or technical failure thereof.Domicilium citandi et executandi
14.28. The physical address provided by the Client in terms of the Clientinformation sheet, shall be the address the Client has chosenwhere summonses, legal documents and notices can be served onthe Client, which shall be the chosen domicilium citandi etexecutandi of the Client for purposes hereof.
14.29. The Photographer may also serve notices, Invoices andcorrespondence on the Client by way of email and thePhotographershall use the email address as provided by the Clienton the Client’s information sheet, as the Client’s chosen emaildomicilium.
14.30. The Photographer chooses his/her/its domicilium citandi etexecutandi as No.22 Duiker Street, Sunward Park, Boksburg,Gauteng, South Africa, 1459 and his/her/their email domicilium firstname.lastname@example.org
14.31. Either of the Parties hereto shall be entitled, from time to time, tovary their domicilium citandi et executandi or email domicilium, byway of notice, which shall be given by such party to the other nomore than 10 (ten) calendar days prior to such change becomingeffected.
14.32. Any notice which:
14.32.1. Is posted by prepaid registered post to the other Party’s chosen domicilium citandi et executandi shall bepresumed, unless the contrary is proved by the Party towhom itis addressed,to have been received by suchPartyon the 5th (fifth) calendar day after such date on which itwas posted; and/or
14.32.2. Is transmitted by email to the other Party’s emaildomicilium shall be deemed to have been received by theParty to whom it is addressed on the date oftransmission or, if the transmission is made out ofnormal business hours, on the first business dayfollowing after the date of transmission.Counterparts
14.33. This Agreement may be executed in one or more counterparts, eachof which shall be deemed an original, and all of which, together,shall constitute one and the same Agreement, as at the date ofsignature of the party last signing any one or all of the counterparts.The Parties undertake to take whatever steps as may be necessary,to ensure that all the counterparts are duly signed by each of them.
14.34. In addition to Clause 14.33. above, where this Agreement is signedin one or more counterparts, the Parties herewith expressly agreethat emailed, scanned or facsimile copies of this Agreement willbe construed and accepted as legal and original and the signaturesthereon shall be both legal and binding.