Terms and Conditions

Notes:

  • Costs are final and based on the information provided by the client in the email correspondence. Costs may be subject to change if the brief changes.

  • 50% is payable prior to the job.

  • Balance is payable within 7 days from the date of final invoice.

  • Upon full payment of invoice(s), license will be given for use as stated herein.

  • Estimate costs are quoted in AUD.

  • The quotation is only valid for 30 days and the price mentioned in the quote applies for products received together in one shoot. If the actual products received are lower than the agreed quantity then PHOTOWORKS Australia PTY LTD holds the right to re-issue a new quote with new pricing.​ The client will be informed of the change prior to the shoot.

TERMS AND CONDITIONS:

1. Definitions The following words and expressions shall have the meanings set out against them below unless the context otherwise requires: “Additional Costs” means such additional costs as are incurred by PHOTOWORKS in delivering the Product over and above the Total Fee; “Additional Media Use Options” means use of the Images in media and/or for a period of time over and above the BUR [as set out in this Agreement]; “Adverse Weather Conditions” means weather conditions that disrupt and/or delay the delivery of the Product on the Delivery Date; “Agreement” means the letter of agreement attached hereto setting out, inter alia, details of the Product and the Total Fee which agreement includes the terms and conditions set out herein; “Author” means Photographer – and may be signified in the terminology of “Artist” “Artist” means Photographer. “BUR” means Base Usage being the use of the Product as outlined in the Letter of Agreement for the period of time outlined in the Letter of Agreement. “Additional Usage” means the additional media and increased time frame above and beyond the BUR and is subject to additional payment as outlined in the Letter of Agreement, “Client” means the client named in this Agreement as the purchaser of the Product; “Client Brief” means description of Product contained in the Letter of Agreement “Copyright” means all rights, of whatever nature, in and to the Images, including, without limitation, all rights of intellectual property and ownership – as determined within the confines of the letter of Agreement. “Delivery Date” means the date upon which the delivery of the Product will commence as set out in this Agreement; “PHOTOWORKS” means PHOTOWORKS Australia Pty Ltd of Suite 57, 61 Marlborough Street, Surry Hills, Sydney 2010; “Images” means product or service provided. “Letter of Agreement” means the final estimate that is agreed by the client in the form of a Purchase order to the full value of the agreed estimate OR a final estimate as signed by a representative of the client. “Product” means the goods and services set out in this Agreement including, without limitation, a license to reproduce the Images; “Total Fee” means the total cost of the Product as set out in this Agreement which figure is inclusive of GST.

2. PHOTOWORKS Obligations 2.1 Subject to the terms of the terms and conditions set out below, PHOTOWORKS shall deliver the Product to the Client on the Delivery Date.

3. Client Obligations

3.1 In consideration of PHOTOWORKS agreeing to deliver the Product, the Client shall, on execution of this Agreement, pay to PHOTOWORKS 50% of the Total Fee.

3.2 The client will provide a written brief. Without a written brief, PHOTOWORKS does not take responsibility for misinterpretation of verbal communication.

3.3 The Client shall pay the balance of the Total Fee together with Additional Costs and/or the cost of all Additional Media Use Options within 30 days of receipt of an invoice therefore.

3.4 Late payment of any sums due to PHOTOWORKS under the terms of this Agreement shall incur interest at the rate of 6% of the base rate of the Commonwealth Bank of Australia from time to time from the date on which such sums become due until payment. Alternately PHOTOWORKS retains the right to withdraw license of copyright on images if payment terms are not adhered to.

3.5 Without prejudice to the terms of clause 3.3 above, in the event that the Client fails to make the payment set out in clause 3.1 in advance of the Delivery Date, the right to the copyright can be withdrawn at PHOTOWORKS discretion.

3.6 The Client shall use the Product for Usage as specified in the Letter of Agreement and such other Additional Media Use Options as have been paid for in full and shall not otherwise reproduce, copy or replicate the Product in any way.

3.7 The Client acknowledges and accepts that, notwithstanding the terms of this Agreement and the license granted in respect of the Images, Copyright in the Images remains vested in the Author.

4. Adverse Weather Conditions and Additional Costs

4.1 In the event of Adverse Weather Conditions, the following applies: When the booking has nominated that it is subject to weather hold and a subsequent day is held, then no fee is charged upon taking the first weather cancellation. The second cancellation due to adverse weather will incur 50% of all fees and the full cost of all incidentals incurred. All subsequent days will be subject to full payment of agreed costs and fees as outlined in Agreement- unless otherwise negotiated.

4.2 The Client shall meet all Additional Costs incurred provided such costs are less than [AUD$5,000.00]. In the event that such Additional Costs are likely to exceed this figure, PHOTOWORKS shall seek written approval of such costs on receipt of which all such costs shall become payable in accordance with clause 3 hereof.

5. Limitation of Liability

5.1 PHOTOWORKS shall not be liable for any loss or damage of whatever nature including, without limitation, loss or damage of a direct, indirect, incidental, consequential or punitive nature, as a result of the delivery and use of the Product.

5.2 Without prejudice to the terms of clause 5.1. Above, any liability incurred by PHOTOWORKS in respect of or in connection with this Agreement and/or the product, shall be limited to the value of the Total Fee.

5.3 The Client hereby agrees to indemnify PHOTOWORKS and the Author and hold them harmless in respect of any and all claims, liability, damages, costs and expenses of whatever nature, including, without limitation, reasonable legal fees, arising as a result of or in connection with the use of the Product and/or a breach of this Agreement.

6. Miscellaneous

6.1 Neither party may assign, transfer or charge any of its rights and duties under this Agreement without the prior written consent of the other party.

6.2 PHOTOWORKS may sub-contract any of its obligations under this Agreement but shall not be relieved of its obligations thereby to the Client.

6.3 No failure to exercise and no delay by PHOTOWORKS in exercising and enforcing any right under this Agreement shall operate as a waiver of that right nor shall any single or partial exercise of any other right, power or privilege.

6.4 If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be divisible from this Agreement, shall be deemed deleted from it and shall not affect the remaining provisions of this Agreement in any way.

6.5 Neither party shall be liable for any delay or nonperformance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control.

6.6 This Agreement supersedes and cancels all prior negotiations and agreements in respect of the Product and represents the entire understanding between PHOTOWORKS and the Client. This Agreement may only be amended by written instrument authorized by a representative of both parties.

6.7 This Agreement shall be governed by and construed in accordance with the laws of New South Wales and the parties hereto agree to submit to the exclusive jurisdiction of the New South Wales courts.

7. Cancellations

7.1 Upon Cancellation by the Client of the Product described in the Agreement: a) within 12 business hours prior to shoot commencement, the Total Fee must be paid in full. b) within 24 business hours Cancellation, 50% of Artist Fees and 100% of costs incurred, must be paid in full.