Photographer terms and conditions - Version 1.0
DEFINED TERMS
1.1
Unless inconsistent with the context, the expressions set forth below
shall bear the following meanings:
“the Act”
the Copyright Act (No. 98 of 1978), as amended from
time to time;
“this Agreement”
these terms and conditions and any annexures hereto,
as amended from time to time;
“Booking Form”
the Booking Form to which this Agreement is annexed;
“Client”
the person or legal entity identified as the Client in the
Booking Form;
“Content”
content which the Photographer has agreed to produce
in the course of rendering the Services including, but
not limited to, photographs and video footage;
“Fees”
the Photographer’s fees and disbursements referred to
in clause 1.24 below;
“Parties”
the Photographer and the Client (and “Party” shall have
a corresponding meaning);
“the Photographer”
the Photographer named in the Booking Form;
“Services”
the Services to be rendered by the Photographer to the
Client as described in clause 1.12 below which shall
include, but are not limited to, the Shoot;
“the Shoot”
the photo shoot during the course of which the
Photographer will take photographs of the Client and/or
such other subjects as the Client may specify in the
Booking Form or otherwise in writing;
“Signature Date”
the date the Client signs the Booking Form;
“Website”
the Photographer website specified on the Booking Form
INTERPRETATION
1.2
The headnotes to the clauses of this Agreement are inserted for
reference purposes only and shall in no way govern or affect the
interpretation hereof.
1.3
Where any term is defined within the context of any particular clause
in this Agreement, the term so defined, unless it is clear from the
clause in question that the term so defined has limited application to
Page
1
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.
Photographer terms and conditions - Version 1.0
the relevant clause, shall bear the meaning ascribed to it for all
purposes in terms of this Agreement, notwithstanding that that term
has not been defined in this interpretation clause.
1.4
Unless inconsistent with the context, an expression which denotes any
gender includes the other genders; a natural person includes an
artificial person and vice versa; and the singular includes the plural
and vice versa.
1.5
Unless inconsistent with the context or save where the contrary is
expressly indicated:
1.5.1
if any provision in a definition is a substantive provision
conferring rights or imposing obligations on any Party,
notwithstanding that it appears only in this interpretation clause,
effect shall be given to it as if it were a substantive provision of
this Agreement;
1.5.2
a reference to "days" shall be construed as calendar days unless
qualified by the word "business", in which instance a "Business
Day" shall be any day other than a Saturday, Sunday or official
public holiday in the Republic. Any reference to "business hours"
shall be construed as being the hours between 08h30 (eight
hours and thirty minutes) and 17h00 (seventeen hours) on any
Business Day. Any reference to time shall be based upon South
African Standard Time;
1.5.3
when any number of days is prescribed in this Agreement, same
shall be reckoned exclusively of the first and inclusively of the
last day unless the last day falls on a day which is not a Business
Day, in which case the last day shall be the next succeeding
Business Day;
1.5.4
in the event that the day for payment of any amount due in terms
of this Agreement should fall on a day which is not a Business
Day, the relevant day for payment shall be the subsequent
Business Day;
1.5.5
in the event that the day for performance of any obligation to be
performed in terms of this Agreement should fall on a day which
is not a Business Day, the relevant day for performance shall be
the subsequent Business Day;
1.5.6
any reference in this Agreement to an enactment is to that
enactment as at the Signature Date and as amended or reenacted from time to time;
1.5.7
any reference in this Agreement to this Agreement or to any
other Agreement or document shall be construed as a reference
to this Agreement or (as the case may be) such other Agreement
or document, as the same may have been, or may from time to
time be, amended, varied, novated or supplemented;
1.5.8
no provision of this Agreement constitutes a stipulation for the
Page
2
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.
Photographer terms and conditions - Version 1.0
benefit of any person who is not a party to this Agreement;
1.5.9
a reference to a Party includes that Party’s successors in title.
1.6
The rule of construction that the contract shall be interpreted against
the Party responsible for the drafting or preparation of this Agreement,
shall not apply.
1.7
The use of the word "including" followed by a specific example shall
not be construed as limiting the meaning of the general wording
preceding it and the eiusdem generis rule shall not be applied in the
interpretation of such general wording or such specific example.
1.8
The expiration or termination of this Agreement shall not affect such of
the provisions of this Agreement as expressly provide that they will
operate after any such expiration or termination or which of necessity
must continue to have effect after such expiration or termination,
notwithstanding that the clauses themselves do not expressly provide
for this.
1.9
The Booking Form is intended to preface this Agreement and forms an
integral part of this Agreement. Words and expressions defined in this
Agreement shall bear, unless the context otherwise requires, the same
meaning in the Booking Form.
APPOINTMENT
1.10
The Client appoints the Photographer to render the Services to the
Client on the terms and conditions set out in this Agreement.
1.11
The Client agrees that the Photographer’s appointment shall be as the
sole and exclusive photographer for the Shoot.
DURATION
1.12
This Agreement shall commence on the Signature Date.
THE SERVICES
1.13
The Photographer’s Services are detailed on the Website.
1.14
The Services the Client has requested and which the Photographer
shall render to the Client in terms of this Agreement shall be specified
in the Booking Form.
1.15
The precise nature and content of the Services specified in the
Booking Form are as read with the details of the relevant Services on
the Website as at the Signature Date.
1.16
The Photographer shall not be required to render any services other
than the Services specified in the Booking Form or otherwise as agreed
to in writing between the Parties.
Page
3
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.
Photographer terms and conditions - Version 1.0
SERVICE LEVELS
1.17
The Photographer warrants that it has the expertise and resources to
render the Services contemplated herein and shall render the Services
with due care, diligence and skill and in accordance with the industry
standards expected of expects in its area of expertise.
1.18
The Photographer reserves the right to edit and release Content which
the Photographer deems, in its sole discretion, to be within its artistic
standards and of sufficient professional quality to merit such release.
CLIENT’S OBLIGATIONS
1.19
The Client shall furnish the Photographer with a complete list of people
who the Client wishes the Photographer to photograph in advance of
the Shoot.
1.20
The Client warrants that each of the people referred to in clause 1.19
above –
1.20.1
grant the Photographer permission to photograph or record them
as well as to use the Content in the Photographer‘s
advertisements and promotional materials, print and electronic
publications, video broadcasts, radio broadcasts or any similar
electronic and mechanical means; and
1.20.2
waive any right they may have to compensation for the use of the
Content as contemplated in clause 1.20.1 above or to inspect
and/or approve the finished product in which the Content may be
used.
1.21
The Client agrees that it remains solely responsible for obtaining the
necessary consents referred to in clause 1.20 above and shall notify
the Photographer, in advance, should the Client be unable to obtain
the necessary consents.
COPYRIGHT AND LICENSE
1.22
The Parties agree that, by virtue of section 21(1)(e) of the Act, section
21(1)(c) of the Act shall not apply and that the Photographer shall
remain the owner of copyright in the Content.
1.23
The Photographer grants the Client a personal, nonexclusive, noncommercial, fully-paid, royalty free, non-transferrable and worldwide
license to use, modify, delete from, add to, publicly display, reproduce,
distribute the Content.
1.24
In the event that the Photographer enters the Content referred to
above into bridal competitions, the Photographer shall only enter
Content of the marital couple.
FEES
1.25
The Client shall, as consideration for the Services to be rendered by
Page
4
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.
Photographer terms and conditions - Version 1.0
the Photographer in terms of this Agreement, effect payment of the
fees detailed in the Booking Form, alternatively, where the Booking
Form does not specify fees payable for the Services, the fees and
charges applicable to the Client’s selected Services as stated on the
Website on the Signature Date.
1.26
The Client shall further be responsible for paying the Photographer’s
reasonable disbursements incurred in the course of rendering the
Services.
1.27
All amounts due to the Photographer shall be paid to the Photographer
by the Client without deduction or set-off on the basis set out in the
Booking Form, alternatively on the terms set out in the Photographer’s
invoice.
1.28
In the event of the Client failing to timeously effect payment of any
amount due to the Photographer in terms of this Agreement, the
Photographer shall be entitled to exercise a lien over any or all
deliverables pursuant to the Services including, but not limited to,
digital Content and photographic prints.
WARRANTIES
1.29
Save as expressly set out in this Agreement, the Photographer does
not make any representations or give any warranties whatsoever in
respect of the Services.
LIABILITY
DISCLAIMERS AND LIMITATION OF LIABILITY
1.29.1
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE
PHOTOGRAPHER DISCLAIMS ALL WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED.
1.29.2
THE PHOTOGRAPHER SHALL NOT BE RESPONSIBLE FOR COLOUR
REPRODUCTION PRINT ERRORS MADE BY THIRD PARTY SERVICE
PROVIDERS.
1.29.3
THE CLIENT FURTHER AGREES THAT –
1.29.3.1
UNDER NO CIRCUMSTANCES WHATSOEVER, INCLUDING AS A
RESULT OF THE PHOTOGRAPHER’S NEGLIGENT ACTS OR
OMISSIONS OR THOSE OF ITS SERVANTS, AGENTS OR
CONTRACTORS OR OTHER PERSONS FOR WHOM IN LAW THE
PHOTOGRAPHER
MAY
BE
LIABLE,
SHALL
THE
PHOTOGRAPHER
OR
ITS
SERVANTS,
AGENTS
OR
CONTRACTORS OR OTHER PERSONS FOR WHOM IN LAW THE
PHOTOGRAPHER MAY BE LIABLE (IN WHOSE FAVOUR THIS
CONSTITUTES A STIPULATIO ALTERI OR STIPULATION FOR
ANOTHER), BE LIABLE FOR ANY DIRECT, INDIRECT,
EXTRINSIC, SPECIAL, PENAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL LOSS, DAMAGE OR DAMAGES OF ANY KIND
WHATSOEVER OR HOWSOEVER CAUSED (WHETHER ARISING
Page
5
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.
Photographer terms and conditions - Version 1.0
UNDER CONTRACT, DELICT OR OTHERWISE OR AS A
VIOLATION OF ANY PARTY’S INTELLECTUAL PROPERTY
RIGHTS AND WHETHER THE LOSS WAS ACTUALLY FORESEEN
OR REASONABLY FORESEEABLE).
1.29.3.2
NO CLAIMS OR LEGAL ACTION ARISING OUT OF, OR RELATED
TO, THE SERVICES OR THIS AGREEMENT WHICH THE CLIENT
MAY BE ENTITLED TO SHALL EXCEED THE AGGREGATE FEES
PAID TO THE PHOTOGRAPHER IN TERMS OF THIS
AGREEMENT.
INDEMNITY
1.29.4
THE CLIENT HEREBY INDEMNIFIES THE PHOTOGRAPHER AND ITS
EMPLOYEES, SERVANTS, AGENTS OR CONTRACTORS OR OTHER
PERSONS FOR WHOM IN LAW THE PHOTOGRAPHER MAY BE
LIABLE (IN WHOSE FAVOUR THIS CONSTITUTES A STIPULATIO
ALTERI OR STIPULATION FOR ANOTHER) FROM ANY LOSS,
DAMAGE, DAMAGES, LIABILITY, CLAIM OR DEMAND DUE TO OR
ARISING OUT OF:
1.29.4.1
ANY VIOLATION OF ANY PARTY’S INTELLECTUAL PROPERTY
RIGHTS INCLUDING, BUT NOT LIMITED TO, COPYRIGHT;
AND/OR
1.29.4.2
BREACH OF PRIVACY AS A RESULT OF THE COLLECTION
AND/OR PROCESSING OF PERSONAL INFORMATION (AS
DEFINED IN THE PROMOTION OF ACCESS TO INFORMATION
ACT, NO. 2 OF 2000) BY THE CLIENT, ITS DIRECTORS,
EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS OR
SERVICE PROVIDERS.
BREACH
1.30
Subject to any other provision of this Agreement providing for the
remedy of any breach of any provision hereof, should the Client
commit a breach of any provision of this Agreement and fail to remedy
such breach within ten days of receiving written notice from the
Photographer requiring the Client to do so, then the Photographer shall
be entitled, without prejudice to its other rights in law to -
1.30.1
cancel this Agreement, provided the breach in question is a
material breach going to the root of this Agreement; or
1.30.2
claim specific performance of all of the Client's obligations
whether or not due for performance,
1.30.3
in either event without prejudice to the Photographer's right to
claim damages.
1.31
The Photographer shall be entitled to summarily terminate this
Agreement in the event of the Client being placed in liquidation or
under judicial management, whether provisionally or finally, or in the
event of the Client entering into a compromise with its creditors
Page
6
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.
Photographer terms and conditions - Version 1.0
generally. All amounts due by the Client to the Photographer in terms
of this Agreement shall, in the circumstances contemplated in this
clause, immediately become due and payable to the Photographer.
GOVERNING LAW AND JURISDICTION
1.32
This Agreement shall be governed in all respects by and shall be
interpreted in accordance with the laws of the Republic of South Africa.
1.33
The Customer consents to the jurisdiction of the Magistrates Court in
respect of any claim arising out of or pertaining to this Agreement or
the services even though any claim the Client may have against the
Photographer exceeds the monetary jurisdiction of the Magistrates
Court.
FORCE MAJEURE
1.34
If either Party is prevented or restricted directly or indirectly from
carrying out all or any of its obligations under this Agreement by
reason of strike, lock-out, fire, explosion, floods, riot, war, accident, act
of God, embargo, legislation, shortage of or a breakdown in
transportation facilities, civil commotion, unrest or disturbances,
cessation of labour, government interference or control, or any other
cause or contingency beyond the control of that Party, the Party so
affected shall be relieved of its obligations hereunder during the period
that such event and its consequences continue but only to the extent
so prevented and shall not be liable for any delay or failure in the
performance of any obligations hereunder or loss or damages either
general, special or consequential which the other Party may suffer due
to or resulting from such delay or failure, provided always that written
notice shall forthwith be given of any such inability to perform by the
affected Party.
1.35
Any Party invoking force majeure shall upon termination of such event
giving rise thereto forthwith give written notice thereof to the other
Party. Should such force majeure continue for a period of more than
90 days then the Party who shall not have invoked the force majeure
shall be entitled forthwith to cancel this Agreement in respect of any
obligations still to be performed hereunder.
ASSIGNMENT
1.36
No Party ("the ceding Party") shall be entitled to cede, delegate, assign
or otherwise transfer all or any of its rights, interests or obligations
under and/or in terms of this Agreement except with the prior written
consent of the other parties, which consent will not be unreasonably
withheld, provided that each Party shall be entitled, without the prior
written consent of the other parties, to cede, delegate or otherwise
transfer all or any of their rights, interest or obligations under and/or in
terms of this Agreement to any company which shall be a subsidiary of
that Party or which shall be a subsidiary of the holding company of
such Party ("the cessionary"), it being recorded that, prior to such
cession, delegation, assignment and/or transfer, the ceding Party shall:
Page
7
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.
Photographer terms and conditions - Version 1.0
1.36.1
procure that the cessionary shall bind itself as a Party to this
Agreement, in the place and stead of the ceding Party;
1.36.2
the ceding Party shall bind itself in favour of the other parties as a
surety for and co-principal debtor together with the cessionary in
respect of the due and punctual performance by the cessionary of
all of its obligations arising in terms of and/or in connection with
this Agreement; and
1.36.3
in the event that the cessionary shall cease being a subsidiary of
the ceding Party and/or a subsidiary of the holding company of
the ceding Party, the cessionary shall, prior to the happening of
such event, cede and delegate and/or transfer all of its rights,
interests or obligations in terms of this Agreement to another
company, mutatis mutandis on the same basis recorded in this
clause , which shall then be a subsidiary of the ceding Party or a
subsidiary of the holding company of the ceding Party.
SEVERABILITY
1.37
If any clause or term of this Agreement should be invalid,
unenforceable or illegal, then the remaining terms and provisions of
this agreement shall be deemed to be severable therefrom and shall
continue in full force and effect unless such invalidity, unenforceability
or illegality goes to the root of this Agreement.
DOMICILIUM AND NOTICES
1.38
The Client chooses as its domicilium citandi et executandi
("domicilium") for all purposes arising from or pursuant to this
Agreement, its address and contact details specified in the Booking
Form.
1.39
The Photographer chooses as its domicilium for all purposes arising
from or pursuant to this Agreement, the address and contact details
set out in the Booking Form.
1.40
Any Party hereto shall be entitled to change its domicilium from time
to time, provided that any new domicilium selected by it shall be an
address other than a box number in the Republic of South Africa, and
any such change shall only be effective upon receipt of notice in
writing by the other parties of such change.
1.41
All notices, demands, communications or payments intended for any
Party shall be made or given at such Party's domicilium for the time
being.
1.42
A notice sent by one Party to another Party shall be deemed to be
received:
1.42.1
on the same day, if delivered by hand;
1.42.2
on the same day, if transmitted electronically with receipt
received confirming completion of transmission; or
Page
8
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.
Photographer terms and conditions - Version 1.0
1.42.3
1.43
on the third day after despatch, if sent by prepaid courier.
Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a Party shall be an
adequate written notice or communication to it notwithstanding that it
was not sent to or delivered at its chosen domicilium citandi et
executandi.
GENERAL
1.44
This document constitutes the sole record of the Agreement between
the Parties in regard to the subject matter thereof.
1.45
No Party shall be bound by any express or implied term,
representation, warranty, promise or the like, not recorded herein.
1.46
No addition to, variation or consensual cancellation of this Agreement,
including this clause, shall be of any force or effect unless in writing
and signed by or on behalf of all the Parties.
1.47
No indulgence which any of the Parties ("the grantor") may grant to
any other or others of them ("the grantee(s)") shall constitute a waiver
of any of the rights of the grantor, who shall not thereby be precluded
from exercising any rights against the grantee(s) which might have
arisen in the past or which might arise in the future.
1.48
The Parties undertake at all times to do all such things, to perform all
such acts and to take all such steps and to procure the doing of all
such things, the performance of all such actions and the taking of all
such steps as may be open to them and necessary for or incidental to
the putting into effect or maintenance of the terms, conditions and
import of this Agreement.
1.49
No Party shall be entitled to cede, delegate or otherwise transfer all or
any of its rights, interest or obligations under and in terms of this
Agreement except with the prior written consent of the other Parties.
Page
9
This work is © Paul Jacobson and is licensed under a Creative Commons Attribution Share-Alike 2.5 ZA License
This document is being made available subject to the web.tech.law Legal Docs Use Terms.