Milldove Photography Terms and Conditions
ALL SESSIONS TERMS AND CONDITIONS:
1. INSTRUCTIONS MUST BE IN WRITING
The Client must ensure that all their instructions and expectations (or variations of such) regarding the Booking or Order are agreed in writing.
2. LICENSE GRANTED TO CLIENT
The copyright in all Photographic Works resulting from the Booking or Order remains the property of the Photographer.
The Photographer does not accept commissions to create Photographic Works. The Photographer and the Client have agreed by these standard terms to override section 21(3) of the Copyright Act 1994.
The Photographer grants the Client a non – exclusive License to use those parts of the Photographic Works selected by the Photographer and presented to the Client, however this License does not include the right to copy, reproduce or publish the Photographic Works or any part of the Photographic Works. The Client may license any or all of the Photographic Works from the Photographer’s selection.
The Client acknowledges that the purpose of the creation of the Photographic Works includes the right of the Photographer to:
. a) enter the Photographic Works into photographic competitions or awards and for their use in any material published in connection with promoting those competitions or awards; and
. b) advertise or otherwise promote the Photographer’s Work; and
. c) submit the Photographic Works for display at art galleries or other premises; and
. d) use the Photographic Works for any other purpose within the Photographer’s business activities.
3. CONDITIONS OF LICENSE
This License to use, and the right to use, the Photographic Works comes into effect from the date of full payment of the Order, except where the Photographer gives express written permission.
4. COPYRIGHT IN THE WORKS
All copyright that arises out of the performance of the Photographer’s obligations under this contract shall arise not by commission but shall be the creation of the Photographer. The Photographer shall remain the first owner of the Photographic Works and the Client shall be supplied with the Photographic Works for use on the basis of the terms of this License. The Client shall have the right to seek further licenses for reuse of any copyright at the Photographers normal prices at the time of the request.
5. MORAL RIGHTS
The Photographer asserts his or her moral rights in respect of the Photographic Works and any reference to the Photographic Works shall be accompanied by full attribution to the Photographer in a form to be approved by the Photographer.
6. PRIVACY and PERSONAL INFORMATION
The Photographer shall abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection.
The Client shall pay the Photographer the various amounts payable in accordance with the Booking and/or Order agreement(s).
Any monies not paid in full in accordance with clause 7 may be charged with interest at a rate of 2% per month or part month overdue.
The Client undertakes to indemnify the Photographer for any loss, damage, or expense (including costs as between solicitor client basis) suffered or incurred as a result of any breach by the Client of these conditions or in recovering any moneys due and such loss, damage or expense shall be moneys due for the purposes of these terms and conditions.
10. CANCELLATION OR POSTPONEMENT OF BOOKING
Where the Client cancels or postpones a Booking appointment, the Client must pay, at the Photographer’s discretion, the amounts that have already been invoiced or are due as outlined on the Booking agreement, regardless of whether the appointment is attended or not.
Where a booked appointment involves more than one person, it is the Client’s responsibility to ensure that everyone required arrives at the appointment on time.
Failure of any person to arrive at the appointment on time will result in, at the Photographer’s discretion, cancellation or postponement.
The Booking appointment and any fees paid prior to cancellation or postponement of the appointment are transferable to another person, as if it were the original person, as long as the Booking is similar and the date and time of the appointment are not changed.
11. CLIENT CONFIDENTIALITY
The Client must advise the Photographer as to whether any material or information communicated to him/her is of a confidential nature. The Photographer will keep confidential material or information communicated to him/her in confidence for the purposes of the photography, except where it is reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the Booking or Order.
12. INDEMNITY FOR BREACHES OF INTELLECTUAL PROPERTY
The Client shall fully indemnify the Photographer in respect of any claims, costs, or expenses arising out of any illegal or defamatory Photographic Works produced for the Client or any infringement of an intellectual property right of any person.
13. COLOUR VARIATION
The Client acknowledges that Photographic Works may fade or discolour over time due to the inherent qualities of materials used. The Client releases the Photographer from any liability for any claim based upon fading or discolouration.
14. IMPORTANT NOTICE – CONSUMER GUARANTEES ACT 1993
The Consumer Guarantees Act 1993 may apply to the licensed Photographic Works provided by the Photographer if the Client acquires those licensed Photographic Works for personal, domestic or household use or consumption. If this Act applies, nothing in these Standard Terms will limit or exclude the Client’s rights under this Act.
If the Client is acquiring the licensed Photographic Works for business purposes, then the Client’s rights are subject to these standard terms only and the Consumer Guarantees Act 1993 shall not apply. In this case the Photographer may grant a separate licence under the Standard Terms for Commercial Photography.
15. PHOTOGRAPHER NOT LIABLE FOR LOSSES
Except as provided for by the Consumer Guarantees Act 1993 the Photographer shall not be liable for:
a) any loss or damage arising by reason of any delay in the completion of the Photographic Works; or
b) any loss of profits; or
c) any indirect or consequential loss of whatever nature; or
d) any loss resulting from any errors or omissions arising from an
oversight or a misinterpretation of a Client’s verbal instructions arising directly or indirectly from any breach by the Photographer of any of its obligations under the Booking or Order or from any cancellation of the Booking or Order or from any negligence on the part of Photographer.
16. LIABILITY OF PHOTOGRAPHER LIMITED
The Photographer’s liability to the Client for any and all costs, loss or damage suffered by the Client, however caused, arising out of or connected with the performance or failure of performance of photographic services by the Photographer, except where provided to the contrary by the Consumer Guarantees Act, shall not exceed the full value of the payments made by the Client under the Booking and/or Order agreements.
17. ORDER MAY BE TERMINATED ON NOTICE
Effective termination of the Order by the Client must be in writing and give reasonable notice to the Photographer. The Client must compensate the Photographer for all amounts due in accordance with the Order Agreement (including the proportion of the Order that has been completed at the date of termination). Upon receipt of such notice from the Client, the Photographer must take immediate steps to bring the photographic services to a close.
18. FORCE MAJEURE
Neither the Client nor the Photographer shall be liable for any loss or damage arising directly or indirectly due to an act of God, fire, armed conflict, labour disputes, civil commotion, intervention of a government, accidents, interruption to transportation, weather or any other cause outside the Photographers control.
19. CREDITS AS PART OF YOUR PACKAGE
All credits as part of your package fee is only valid at the Viewing and Ordering session for the photography session it was included in. All parents/decision makers are to be in attendance in order for the Credit to be valid.
Photographic Works: includes photographic prints, transparencies, negatives and digital images created by the Photographer.
Order: includes an order placed by the Client for the production of Photographic Works, an invoice or statement.
Client: means the client listed on the Booking or Order agreement.
Licence: is a right granted by the Photographer to the Client to use the copyright works of the Photographer on the terms set out above.
Booking – includes appointments made for a photographic shoot, viewing and any other meeting where the Photographer has set aside specific time to meet with or do work for the Client.
BIRTH CONTRACT TERMS AND CONDITIONS:
No refund is given for services cancelled within 14 days of the CLIENT’S due date unless the CLIENT has suffered a pregnancy loss. Services cancelled prior to 30 days receive a refund of 50% of the retainer paid.
2. PRE-BIRTH CONSULTATION:
Both parties agree to a pre-birth consultation during the 2nd or 3rd trimester in order to discuss the birth plan and CLIENT'S request list for specific photographs and preferences. If a back up photographer is requested by the CLIENT, all parties shall meet for a pre-birth consultation during the 3rd trimester to discuss the CLIENTS birth plan.
The PHOTOGRAPHER (or the contracted backup photographer) shall be the only hired photographer for this event. Family members and friends are permitted to take photos. The PHOTOGRAPHER is not to be held responsible for images missed due to family or friend interference.
Coverage begins at active labour and continues until up to 2 hours after the birth. The PHOTOGRAPHER is on call 24 hours a day for two weeks either side of the CLIENT'S due date. The CLIENT is responsible for contacting the PHOTOGRAPHER during early stages of labour, immediately before leaving for the hospital (if attending), and again when the doctor or midwife confirms active labour. Every reasonable effort will be made to take requested pictures, but no specific pose or photograph can be promised. Any lists supplied will be used for organizational purposes only. The PHOTOGRAPHER agrees to not document any elements of the birth specified by the CLIENT. The CLIENT may request amendments to their photographic coverage preferences directly with the PHOTOGRAPHER at any stage prior to the conclusion of the birth session. Images determined by the PHOTOGRAPHER to be substandard or duplicated may be edited out of the selection delivered to the CLIENT. The PHOTOGRAPHER will use professional judgment and sole discretion to select which photographs to deliver. No other photographs will be made available to the CLIENT. The PHOTOGRAPHER is not responsible for the quality of images affected by low lighting, interference by others attending the birth or other issues beyond the appropriate control of the photographer. The CLIENT and her baby’s safety and comfort are the priority at all times. The CLIENT accepts that the PHOTOGRAPHER decides when to cease photographic activity during emergency and other sensitive situations. The CLIENT agrees to accept the PHOTOGRAPHER will not be liable for making the decision to cease photographing or if medical staff specifically requests that photographic activity cease.
5. HOSPITAL GUIDELINES:
The PHOTOGRAPHER is limited by the hospital’s guidelines and policies, and by any demands placed by hospital staff. The CLIENT accepts that constraints on the PHOTOGRAPHER imposed by the hospital may affect the content and quality of the photographs. Negotiation with the hospital or its staff for moderation of guidelines is the CLIENT'S responsibility.
6. LIMIT OF LIABILITY:
In the unlikely event that the PHOTOGRAPHER is injured or becomes too ill to photograph the birth, they will make every effort to provide the services of a backup photographer. If the situation should occur and a suitable backup is not found, responsibility and liability is limited to the return of all payments received for the birth photography package. The PHOTOGRAPHER will take the utmost care with respect to exposure, transportation, and processing the photographs. However, in the unlikely event that photographs are lost, stolen, or destroyed for reasons within or beyond the PHOTOGRAPHER’s control, liability is limited to the return of all payments received for the birth photography package. The limit of liability for a partial loss of original files shall be the same proportion of the total payments received as the proportion of lost photographs to the total number of photographs made.
7. COPYRIGHT AND USE OF PHOTOGRAPHS:
The CLIENT agrees that The PHOTOGRAPHER owns the copyright in all photographs. From time to time, The PHOTOGRAPHER may wish to use the photographs for industry competitions and to promote and advertise the PHOTOGRAPHER’s business. Any use for any purpose by the PHOTOGRPAPHER is to be agreed to between the CLIENT and PHOTOGRAPHER beforehand. The photographs produced by the PHOTOGRAPHER are protected by the Australian Copyright Act and may not be reproduced in any manner without The PHOTOGRAPHER’s explicitly written permission. Upon payment in full by the CLIENT of the fees agreed to, the CLIENT has a right to use the photographs for personal use including gifts to friends and relatives. The photographs are not to be used by the CLIENT, or any other person, group or business, for commercial purposes, including competitions.
8. DIGITAL FILES:
Upon receipt of the digital image files, the CLIENT accepts all responsibility for archiving and protecting the photographs. The PHOTOGRAPHER does not permanently archive image files. The PHOTOGRAPHER is not responsible for the lifespan of any digital media provided or for any future changes in digital technology or storage media that might result in an inability to read the supplied media. It is the CLIENT'S responsibility to make sure that digital files are copied to new media as required.
9. COMPLETION SCHEDULE:
Digital processing and printing takes approximately 4 weeks from the receipt of any documentation the CLIENT wishes to include or upon completion of the final shoot, whichever comes later. Please note that print and product prices are subject to change without any prior notice.