novasoma photography

Business Details

Trading Name: novasoma photography

Country: Australia

Telephone Number: 0404 617 710

Email: celeste.humphrey@live.com

ABN: 47 867 063 818

Standard Terms & Conditions novasoma photography

1.   DEFINITIONS

In these Terms, unless otherwise stated:

(a)        “Client” means the person, entity or organisation identified in the Quote.

(b)        “Confirmation Date” means the date on which the Client confirms which of the drafts provided to the Client by the Photographer will constitute the final Photographs and any required edits to be made to them.

(c)         “Deposit” means an amount set out in the Quote as an upfront payment, if any.

(d)        “Deliverable Date” means the date on which the Photographer agrees to provide the Client with the final versions of the Photographs, as set out in the Quote or as otherwise varied by agreement between the Parties.

(e)        “Draft Date” means the date on which the Photographer agrees to provide the Client with the draft proofs of the Photographs, as set out in the Quote or as otherwise agreed.

(f)          “Fee” means the fee payable by the Client for the Services and the Photographs, as set out in the Quote.

(g)        “Licence” means the rights in the Photographs licenced to the Client pursuant to clause 3(c) of these Terms.

(h)        “Parties” means the Photographer and the Client.

(i)          “Permitted Use” means the permitted use for which the Client may use the Photographs, as set out in the Quote.

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

(k)        “Photographer” means Celeste Humphrey.

(l)          “Photo Shoot” means the session during which the Photographs are taken by the Photographer.

(m)     “Quote” means the quotation given by the Photographer to the Client for the commissioning of the Photographer to perform the Services and create the Photographs.

(n)        “Services” means the services set out in the Quote to be undertaken by the Photographer in order to provide the Client with the Photographs.

(o)        “Shoot Date” means the date of the Photo Shoot as set out in the Quote, or as otherwise varied by agreement between the Parties.

(p)        “Terms” means these terms and conditions read in conjunction with the Quote.

2. AGREEMENT AND ACCEPTANCE OF TERMS

(a) The Client agrees that the Photographer will perform the Services and provide the Client with the Photographs, as set out in the Quote, on the terms and conditions set out in these Terms.

(b) In the event of any inconsistency between a provision contained within these standard terms and conditions, and a provision contained within the Quote, the Quote will prevail to the extent of the inconsistency.

(c) The Parties agree to conduct the Photo Shoot on the Shoot Date.

(d) The Photographer agrees to provide the Client with a selection of draft proofs from the Photo Shoot, as selected by the Photographer, on or before the Draft Date.

(e) The Client agrees to select from the draft Photographs provided to the Client by the Photographer, and confirm with the Photographer, the Client’s choice of the number of Photographs set out in the Quote and any required edits to be made to them within seven (7) days of the Draft Date.

(f) The Photographer agrees to provide the Client with final versions of the Photographs as selected by the Client pursuant to clause 2(e) of these Terms, in the format set out in the Quote, on or before the Deliverable Date.

3. COPYRIGHT – OWNERSHIP AND LICENCE

(a) The Photographer is the sole author of the Photographs and title to all Photographs remains the property of the Photographer.

(b) The Photographs shall be the Photographer’s interpretation, rather than a literal re-creation of any concepts or layouts provided to the Photographer by the Client. Subject to the Licence, the Photographer retains the entire copyright in the Photographs at all times throughout the World.

(c) Upon full payment of the Fee, the Parties agree that the Client shall have a non-exclusive right to use the Photographs for the Permitted Use. The Parties agree that any extended usage beyond the Permitted Use must be with the prior written consent of the Photographer and may be subject to a further fee as set out in clause 3(d) of these Terms. The Licence cannot be transferred without the Photographer’s prior written consent.

(d) If the Client extends the usage of the Photographs beyond the Permitted Use without the Photographer’s prior written consent, the Client agrees to pay to the Photographer a reasonable additional fee commensurate to the additional use, as determined by the Photographer, upon demand by the Photographer.

(e) Unless otherwise set out in the Quote or agreed in writing by the Photographer, the Client must expressly attribute the Photographer as author of the Photographs when publishing the Photographs.

(f) The Parties agree that the granting of the Licence set out in these Terms does not prohibit the Photographer from using the Photographs herself for any purpose.

(g) If the Client is permitted in the Quote to publish the Photographs online on any social media platform, then:

A.     when publishing the Photographs, the Client must cite the Photographer as the author of the Photographs and note that the images are not to be:

a.      edited in any way;

b.      shared without attributing the Photographer as the author of the Photographs.

B.     the Client agrees to only share Photographs that are in a suitable format for the platform.

3. BOOKING, VARIATIONS AND CANCELLATION

(a) Upon the Client’s acceptance of the Quote and payment of the Deposit (if any), the dates and times set out in the Quote will be reserved for the Client. 

(b) The Client may cancel the Services without payment of any of the Fee provided that the cancellation is in writing to the Photographer at least 5 days prior to the Shoot Date (“Cut Off Date”). The Photographer agrees to return any Deposit or Fee paid by the Client if the Client cancels the Services prior to the Cut Off Date.

(c) In the event the Services are cancelled after the Cute Off Date, the Client agrees to pay to the Photographer a cancellation fee as set out in clause 3(d) of these Terms (“Cancellation Fee”). Any Deposit or Fee already paid by the Client may be applied by the Photographer towards payment of the Cancellation Fee and:

A.     if the Cancellation Fee is greater than any amount already paid by the Client as a Deposit or the Fee, the Photographer will invoice the Client for the shortfall amount and the Client must pay that invoice within five (5) days; or

B.     if the Cancellation Fee is less than any amount already paid by the Client as a Deposit or the Fee, the Photographer will return to the Client any surplus amount within five (5) days of the cancellation.

(d) The Parties agree that the Cancellation Fee will be calculated based on the number of days prior to the Shoot Date that Services are cancelled. If the Services are cancelled:

A.     less than 5 business days, but more than 3 days, prior to the Shoot Date, the Cancellation Fee will be 50% of the Fee;

B.     less than 3 days prior to the Shoot Date, the Cancellation Fee will be 75% of the Fee.

In addition to the Cancellation Fee, the Client will be charged for any expenses already incurred by the Photographer for the Services, such as travel and parking expenses, studio and equipment hire.

(e) If the Photographer, with the agreement of the Client, wishes to postpone the Photo Shoot due to inclement weather / lighting conditions or any other reason beyond the Photographer’s control, the Parties agree to reschedule the Photo Shoot to a mutually agreed date and time within one calendar month of the Shoot Date.

(f) Following postponement of a Photo Shoot pursuant to clause 3(e) of these Terms, and in the event that the Client does not take reasonable steps to agree a date for a rescheduled Photo Shoot in accordance with clause 3(e) of these Terms, the Client agrees to pay to the Photographer 50% of the Fee plus any other expenses already incurred by the Photographer for the Services upon demand by the Photographer.

(g) Once a Quote has been accepted by the Client, the Quote can only be varied such that it will result in an increase to the Fee, not a decrease to the Fee. 

4. PAYMENT TERMS

(a) The Photographer agrees to provide the Client with a valid tax invoice for any Deposit or Fee as soon as is practicable after the Client accepts the Quote.

(b) In some cases, at the absolute discretion of the Photographer, the Photographer may elect to charge a Deposit upfront and then the balance of the Fee at a later date, as set out in the invoice.

(b) The Client agrees to pay the Photographer’s invoice for the Deposit and / or the Fee on or before the date set out on the invoice, in most cases being five days from the date of invoice. 

(c) If payment of the Photographer’s invoice is not finalised by the due date for payment set out on the invoice, the Photographer may cancel the Services.

(d) If payment of the Photographer’s invoice has not been made on or before the Cut Off Date and the Photographer cancels the Services under clause 4(c) of these Terms prior to conducting the Photo Shoot, then the Photographer may charge any applicable Cancellation Fee.

(e) Payment of an invoice by bank transfer is preferred by the Photographer, bank details will be provided on the invoice.

(f) All Deposits and Fees are exclusive of GST unless expressly stated otherwise.

(g) The Client is liable for any applicable GST in respect of the Services.

5. REJECTION AND RESHOOTS

(a) The Client is responsible for having its authorised representative present during the Photo Shoot to approve the Photographer’s work. If no representative is present, the Photographer’s work shall be deemed accepted by the Client.

(b) The Client shall be bound by all approvals and requested changes made by the Client’s representatives. Unless a rejection fee has been agreed in the Quote, there is no right of rejection.

(c) The Photographer will charge I00% of the Fee plus any other charges and expenses for any reshoot requested by the Client.

6. REFUND POLICY

(a) Due to the nature of the Services, once the Photographer has provided the Client with any Photographs, the Photographer will not refund any of the Fee.

7. EDITING & RETOUCHING

(a) All Photographs delivered to the Client will have standard image editing (including: cropping, light skin retouch, light and colour adjustments). Any extra edits requested by the Client, if accepted by the Photographer, will incur an additional fee of $25 per image. Extra image adjustments include but are not limited to the following: change the size of the body or parts of the body, change the colour of parts of the body, extra skin retouch, replace or swap background.

(b) Unless hair and makeup editing is included in the Services, the Photographer is not responsible to retouch hair or skin, or makeup in the Photographs as part of the Fee.

(c) Any edits requested by the Client must be done so prior to the Confirmation Date. The Photographer may charge an additional fee for any edits requested after the Confirmation Date.

(d) The Client shall not electronically or by any other means, methods or processes, whether now known or hereafter developed, in any manner use, scan, reproduce, copy, store or alter any Photograph in whole or in part except as expressly agreed within these Terms or with the subsequent written agreement of the Photographer.

8. CLIENT CONFIDENTIALITY

(a) The Photographer will keep confidential and will not disclose to any third Parties or make use of information communicated to her in confidence for the purposes of the Services, save as may be reasonably necessary to enable the Photographer to carry out her obligations in relation to the Services or as otherwise required by law.

9.  LIMITATION OF LIABIILTY AND INDEMNITY

(a) The Photographer shall not be liable for any legal action, claim or damages resulting from or arising out of the publication of the Photographs or other use by the Client.

(b) The Client must satisfy himself/herself/itself that all necessary rights, model releases, clearances or consents which may be required for reproduction of people, places or items depicted within the Photographs are duly obtained.

(c) The Photographer gives no warranty or undertaking that any 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 of the Photographs. The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed in writing before the Photo Shoot.

(d) The Client shall indemnify the Photographer against all expenses, damages, claims and legal costs on a full indemnity basis arising out of the Client’s breach of these Terms, including any agreed amendments to these Terms.

(e) The Photographer excludes all implied conditions and warranties and guarantees from these Terms, except any implied conditions and warranties and guarantees (such as guarantees set out in the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded (“Non Excludable Condition”).

(f) Subject to the application of any Non Excludable Condition, the Photographer excludes all other liability to the Client for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Client in connection with these Terms, whether that liability arises in contract, tort (including by the Photographer’s negligence) or under statute.  Without limitation, the Photographer will in no circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity.

(g) Where a Non Excludable Condition is deemed to apply, the Photographer limits its liability for any breach to the re-supply of the services affected by the breach, or the payment of the cost of such re-supply, which is to be at the Photographer’s option.

10. FAILURE TO PERFORM

(a) If the Photographer cannot perform her obligations under these Terms due to a fire or other casualty, strike, or other cause beyond the control of the Parties, or due to the Photographer’s illness, then the Photographer shall return to the Client any funds previously paid by the Client but shall have no further liability with respect to these Terms. This limitation on liability shall also apply in the event that photographic materials are damaged in processing, lost through camera malfunction, lost in the mail, or otherwise lost or damaged without fault on the part of the Photographer. In the event the Photographer fails to perform for any other reason, the Photographer shall not be liable for any amount in excess of the Fees.

11. OTHER

(a) The final edits of the Photographs will be retained by the Photographer for a maximum of two years after the Shoot Date. Raw (CR2) images are not retained by the Photographer.

(b) It is the Client’s responsibility to arrange bookings, consent to use any private property and payments (if necessary) for locations where Photo Shoots will be conducted as part of the Services. The Client agrees to indemnify the Photographer for any claim, cost, loss or expense the Photographer suffers as a result of the Client’s failure to obtain consent from the owner of any private property on which a Photo Shoot is conducted as part of the Services.

(c) The laws of the state of Queensland, Australia govern these Terms and each Party submits to the non-exclusive jurisdiction of the courts of the Queensland, Australia.

(d) If any part of these Terms is found to be invalid or of no force or effect under any applicable laws or regulations, these Terms shall be construed as though such part had not been inserted herein and the remainder of these Terms shall retain their full force and effect.

(e)Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under these Terms by a Party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under these Terms.