TERMS
We, our and us means Olivia Sutton trading as Photo Finish Photography (ABN 86 010 504 226).
Services means the services provided by us according to these terms.
You and your means the Client set out in the Booking Form.
1. SERVICES
Performance of Services: We will perform the services at the agreed photo shoot location and on the date(s) set out in our email to you (Event). We will provide the photos as described in the package description ordered by you on the Booking Form.
Photos selection: We will notify you when your photos are available for review and how to access them. You must proof and select the photos you wish to print for your ordered packaged within 10 days after the date the photos are available for review (Final Selection Date). Where the Event is a school, childcare, or graduation photos event, we may charge additional costs or require alternative photo collection arrangements if the photos miss the print run because you did not select the photos. To be clear, we will select the photos to be included for any class photo books (e.g. graduation books).
Photos collection: We will notify you when your photos are available for collection from your childcare centre. You are responsible for collecting the photos at the notified photo collection location as soon as possible, but in any case, no more than 10 days after the date the photos are available for collection (Final Collection Date). If you do not collect the photos by the Final Collection Date, we cannot guarantee the photos will continue to be available for collection after Final Collection Date.
Additional orders: Due to our limited storage space for photos, we will only retain photos for up to 2 months after the Event. If you would like to order additional photos, you will need to place any additional orders within 2 months after the Event.
2. FEES
You must pay the fees for the photos ordered in full at the time of ordering unless otherwise agreed. To be clear, there is no refund if you fail to collect your photos by the Final Collection Date, according to these terms. Furthermore, due to the nature of digital files, any sales for digital files (including Digital Download, single digital image file purchases and digital files on a USB) are non-refundable.
3. OTHER ITEMS AND ACKNOWLEDGEMENT
Use of equipment: There may be heavy photographic equipment, cables, lighting, stands and props at the photoshoot location for the Event. You must take care when moving around such equipment. You are responsible for ensuring that any of your children at the photoshoot location are kept away from these items which may cause injury, harm or property damage.
Creative autonomy: You acknowledge that photography is a subjective form of artistic expression. We have a significant level of creative autonomy, and our photos will generally be consistent with the photographic styles presented in our portfolio unless agreed otherwise.
Availability of photos: We will take many photos during an Event but will only make available for review and selection, the photos that we believe are of sufficient high quality.
Cooperation and general assistance: You must (and must ensure that your children or any other people who will have their photos taken) cooperate and provide general assistance to us in relation to our provision of the Services. This includes following our reasonable directions at the Event. You acknowledge that if you do not provide the requested cooperation and general assistance, we may not be able to properly perform our Services.
4. EVENT CHANGES AND CANCELLATION
Rescheduling: We will use commercially reasonable efforts to provide you (directly or in the case of school photos, through the school) with as much notice as possible if we require an Event to be rescheduled. However, there may be unforeseen circumstances which may result in us having to reschedule on short or no notice.
Cancellation: We may, by notice to you (directly or in the case of school photos, through the school), cancel an Event and terminate our Services to you. We will use commercially reasonable efforts to give you at least 48 hours if we do so. If we cancel an Event (and do not reschedule) and terminate our Services to you, you will be entitled to a full refund of any fees you have paid for us to perform the Services. This is your sole and exclusive remedy with respect to us cancelling an Event and terminating our Services to you.
5. COPYRIGHT
Personal, non-commercial use only: We own the copyright in any photos arising from our Services. You have a perpetual, non-exclusive right to use, make copies of, and distribute the photos we provide you for personal, non-commercial purposes only. In the case of school photos, we may provide a copy of the school photos to the school however we are not responsible for how the school may use the photos. Accordingly, you should check with your school as to how they may use the photos. If you wish to use the photos for commercial purposes, we may provide you with a right to use the photos for commercial purposes on terms to be agreed. You must not remove any watermark or any copyright claim embedded in any metadata on the photos without our permission. High resolution digital photos with the watermark removed are available for purchase at additional cost however due to their digital nature, no refunds are available on digital file purchases.
Attribution: You must attribute us as the photographer of the photos where it is reasonably practicable to do so.
6. LIABILITY AND INDEMNITY
Limitation of liability: To the maximum extent permitted by law, our maximum aggregate liability to you for any claims, damages, loss, liabilities, costs or expenses you (including where applicable, your child or other people who have their photos taken) incur arising from or in connection with this agreement, whether in contract, tort (including negligence) or under statute:
(a) is limited to the fees paid by you to us to perform the Services
(b) will not include any indirect, incidental, special or consequential damages, including loss of revenue, profits, anticipated profits, savings or data; and
(c) will be reduced to the extent you (including your child or other people who have their photos taken) caused or contributed to the liability, or breached the agreement.
Our liability for breach or a condition or warranty that cannot be excluded by law is limited to, at our option, re-supplying or paying the cost of re-supplying the Services.
Indemnity: You indemnify us (including our personnel such as Olivia Sutton) from all claims, damages, losses, liabilities, expenses, costs and expenses, we incur arising from or in connection with any consents provided by you under these terms (including the validity of such consents), and where the person to be photographed is a child, your representation and warranty that you have the capacity, rights, and authority to agree to these terms (including provide the required consents) for the child.
7. EVENTS BEYOND CONTROL
Non-performance by us of any obligation will be excused, without liability, for the time and to the extent that we are unable to perform that obligation by an event or circumstance beyond our commercially reasonable control. If such an event or circumstance occurs, we will tell you the cause and extent we are unable to perform and the likely delay.
8. PERSONNEL
We have a number of experienced photographers who work for us. You may request us to use a particular individual photographer. We will try to allocate your requested photographer to provide the Services to you subject to availability. However, we make no promises that your requested photographer will provide the Services to you.
9. CONSENTS AND PHOTOS OF CHILDREN
Use of photos: You consent for us to use, at our discretion, photos arising from the Services and information for the photos:
(a) to perform our Services; and
(b) unless you notify us in writing otherwise, for marketing purposes but only in connection with us (including Olivia Sutton) and our photography business e.g. in any archive, publicity, website, blog, portfolio, social media, or promotional and marketing materials about us. To be clear, we will not sell our photos of you to third parties.
Editing photos: You acknowledge that we may modify, recompose, apply different visual effects, crop, and combine with other materials the photos before using them for the purposes set out above.
3rd party consents: Where we are requested by you to take photos of other people as part of the Services, you must obtain all relevant consents from those other people for us to use, at our discretion, photos arising from the Services and information for the photos as set out in items (a) and (b) above in this “Consents” section.
Withdrawal of consent for (b) above: In the case of any photos involving children, you may by written notice to us withdraw your consent with respect to item (b) above in this “Consents” section at any time. On receipt of such written notice, we will cease using your child’s photos as soon as practicable. You acknowledge that we have no control over and will not be liable for any photos that have already been published or disseminated.
Photos of children: Where the person to be photographed is a child, you represent and warrant that you have the capacity, rights, and authority to agree to these terms (including provide the required consents) for the child.
10. GENERAL
Interpretation: Unless the contrary intention appears:
(a) the words include, including, for example or such as when introducing an example, do not limit the meaning of the words to which the example relates to the example or examples of a similar kind;
(b) words in the singular number include the plural and words in the plural include the singular number; and
(c) a provision of this agreement must not be construed to the disadvantage of a party merely because that party was responsible for drafting it or this agreement.
Governing law: The law of New South Wales governs the agreement. The parties submit to the exclusive jurisdiction of its courts.