Please note that in confirming Jake O'Donnell for a booking, you agree to abide by these terms and conditions.
TERMS AND CONDITIONS
For the purpose of this agreement “the Agency” and “the Client” shall where the context so admits include their respective assignees, sub-licensees and successor in title. In cases where the Photographer’s Client is a direct Client (i.e. with no Agency or intermediary), all references in this agreement to both “the Agency “and “the Client” shall be interpreted as references to the Photographer’s Client.
For the purpose of this agreement “The Photographer” will mean the Author of the Photograph or Jake O’Donnell and shall where the context so admits include their respective assignees, sub-licensees and successor in title.
“Photographs” and “Works” means all photographic material furnished by the Photographer, whether transparencies, negatives, prints, digital files or any other type of physical or electronic material in existence now or yet to be developed.
“Photo Services” includes all acts required to take photographs to produce the material detailed in clause 1.3.
2.1. All contracts verbal or written are only accepted on the basis that the Terms and Conditions of the Photographer are the only ones applicable.
2.2. Other Terms and Conditions proffered by the Client are specifically excluded unless agreed in writing beforehand by the Photographer.
2.3. Where time is of the essence the Photographer entirely at its own discretion may accept an instruction given orally, in this event the Photographer shall accept no liability for any error in executing the order.
2.4. Unless the Photographer is given prior written notice by the Client, the person placing or signing the order on behalf of the Client is deemed to be authorised to do so.
3.1.The Author retains the entire copyright in the Photographs and Works at all times, throughout the World and;
3.2.Where reproduction of Works has taken place and settlement has not been made, the Photographer will make such charges to the publisher of those images as falls within the Copyright Act 1968.
4. OWNERSHIP OF MATERIALS
4.1.Title to all Photographs remains the property of the Photographer.
4.2.When the License to Use has expired the Photographs must be returned to the Photographer in good condition within 30 days and any archived digital files destroyed where applicable.
4.3.Title to any materials used in producing the Works is not transferred to the Client upon payment of the invoice.
5.1.Payment due date will be clearly noted on the relevant invoice for the commissioned work or else payment will be made on the day of the booking.
5.2. The photographer reserves the right to withhold images until payment has been made in full
5.3.Payment can be made by the following methods:
Cheque - Payable to Jake O’Donnell;
EFT transfer (to the account details provided by Jake O’Donnell);
Any other means detailed on the Invoice.
6.1.Where extra expenses or times are incurred by the Photographer as a result of alterations to the original brief by the Client, or otherwise. The Client shall give approval to and be liable to such extra expenses or fees, in addition to the fees and expenses shown on the Estimate as having been agreed or estimated.
7. RIGHTS TO ATTRIBUTION AND INTEGRITY OF IMAGES
7.1.The Licence to Use requires that the Photographer’s name ‘Jake O’Donnell’ will be printed on or in reasonable proximity to all published reproductions of the Photograph(s).
7.2. When the client uploads any image or images produced by the photographer to any form of social media, including but not limited to “Facebook,” “Instagram” and “Twitter” the photographer must be “tagged” in both the caption and the photo itself.
7.3. Photos and digital files provided by the photographer to the client are not to be edited, cropped or otherwise altered in any way. For adjustments necessary for the purposes of business, prior permission must be sought from the photographer.
7.4. If any of these conditions set out in clause 7 are breached, the photographer reserves the right to withhold all products produced during the photoshoot until such breaches are rectified to the photographer’s satisfaction.
8. SUPPLY TO THIRD PARTIES
8.1.The licence only applies to the Client and product stated on the Licence to Use.
8.2. Images are not to be provided to third parties with which the client is affiliated for any commercial use whatsoever unless the license specifically allows this.
8.3. If this condition is breached, the photographer reserves the right to claim a portion of any and all profits the client received in exchange for providing the image to the third party.
9.1.Upon confirmation of a booking, if requested by the photographer, a deposit will be immediately payable.
9.2. Booking deposits are non-refundable. If the client elects to pay a greater sum than the agreed deposit in advance, this is also non-refundable.
9.3.If a deposit is not received via one of the methods of payment described in Clause 5, the booking will be cancelled.
9.4.Booking deposits are equal to 50% of the photo shoot fee/charge.
9.5.If a venue, studio, hired facility or other location is required for the photoshoot, payment for this must be made up front, unless the client wishes to make this booking themselves directly.
9.6. Failure to make payment for a required venue in advance will result in the booking being cancelled.
10.1.A booking is considered firm as from the date of confirmation and accordingly the Photographer will, at his/her discretion, charge a fee of cancellation or postponement.
10.2. For cancellations or postponements given with 48 hours or less notice, 50% of the agreed fee will be immediately paid to the photographer with the remainder payable on the rescheduled date for the shoot.
10.3. For cancellations or postponements given with 24 hours or less notice, 100% of the agreed fee will be immediately paid to the photographer.
11.1.Unless agreed to in writing on the License to Use and the Invoice no exclusivity is given or implied to The Agency and/or The Client.
11.2.The Photographer retains the right in all cases to use or sell the Photographs.
11.3.Exclusivity will not be unreasonably withheld but only on written agreement with the Photographer before work commences.
12.1.The License to Use comes into effect from the date of payment of the relevant invoice(s).
12.2.No use may be made of the Photographs before payment in full of the relevant invoice(s) without the Photographer’s express permission in writing.
12.3.Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Agency is put into receivership or liquidation.
12.4.Where restricted in the Agreement, permission to use the Photographs for other purposes will normally be granted upon payment of a further fee to be mutually agreed.
12.5.A written agreement must be reached with the Photographer before the Photographs may be used for other purposes. Where uses of an image are made which breach the licence to use further charges will be made.
12.6.Any reproduction rights granted are by way of licence only and no partial or other assignment of copyright shall be implied.
12.7.On the Client’s death or bankruptcy or (if the Client is a Company) in the event of a Resolution, Petition or Order for winding-up being made against it, or if a Receiver or an administration is appointed, any licence granted shall immediately cease.
13.1.It is the Client who 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 any Works are obtained.
13.2.It is acknowledged that the Photographer gives no warranty or undertaking that any such rights, releases or consents are or will be obtained whether in relation to the use of names, people, trademarks, registered or copyright designs or Works of art depicted in any picture.
13.3.The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed in writing before the shoot.
13.4.In all other cases the Client shall indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.
13.5.The Photographer will not be liable for any loss or damage, for any consequential loss of profit or income however caused including negligence by the Photographer, Jake O’Donnell, their employees or agents or otherwise, and it is the Client’s responsibility to insure against such loss or damage.
14. ELECTRONIC STORAGE
14.1. Digital Data is stored by the Photographer on the understanding that the Photographer is not responsible for the future integrity of that data, or of any failure to retrieve data from the Photographer’s archive.
15. FORCE MAJEURE
15.1.We shall have no liability to you under this Agreement if we are prevented from carrying out the Photo Services by:
The client(s) or model(s) not being on time and/or the shoot location having photography restrictions;
any inhibiting background, location, or additional arrangements with other photographers; and/or
any acts, events, omissions or accidents beyond our reasonable control, including strikes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, inclement weather or default of suppliers or sub-contractors.
15.2.In the event of incapacitating illness or injury to the Photographer and where postponement of the booking is not possible, we shall have the option, whenever possible, to mutually agree with you a replacement photographer to carry out the Photo Services. If we cannot agree a replacement then we shall refund to you any fee paid in relation to the interrupted Photo Services in full (subject to our limitation on liability in Clause 17).
16.1.Our entire liability for any breach of this Agreement or any representation, act or omission (including negligence) shall be limited to our fee in relation to the Photo Services and we shall not be responsible for any special, indirect or consequential or pure economic loss, costs, damages, charges or expenses.
16.2.The limitation on liability shall also apply in the event that Photos are lost through equipment malfunction, are lost in the mail or otherwise lost or damaged where the Photographer is not liable.
16.3.Nothing in these Conditions limits or excludes our liability for death or personal injury resulting from negligence; or any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by us.
17. APPLICABLE LAW
17.1.This agreement shall be governed by the Laws of the State of Victoria.
18.1.These Terms and Conditions shall not be varied except by agreement in writing.