Photographer terms and conditions - Version 1.

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DEFINED TERMS 1.1 “the Act” “this Agreement” “Booking Form” “Client” “Content” Unless inconsistent with the context, the expressions set forth below shall bear the following meanings: the Copyright Act (No. 98 of 1978), as amended from time to time; these terms and conditions and any annexures hereto, as amended from time to time; the Booking Form to which this Agreement is annexed; the person or legal entity identified as the Client in the Booking Form; content which the Photographer has agreed to produce in the course of rendering the Services including, but not limited to, photographs and video footage; the Photographer’s fees and disbursements referred to in clause 1.24 below; the Photographer and the Client (and “Party” shall have a corresponding meaning); the Photographer named in the Booking Form;

“Fees” “Parties” “the Photographer”

“Services”

the Services to be rendered by the Photographer to the Client as described in clause 1.12 below which shall include, but are not limited to, the Shoot; the photo shoot during the course of which the Photographer will take photographs of the Client and/or such other subjects as the Client may specify in the Booking Form or otherwise in writing; the date the Client signs the Booking Form; the Photographer website specified on the Booking Form

“the Shoot”

“Signature Date” “Website” INTERPRETATION 1.2

The headnotes to the clauses of this Agreement are inserted for reference purposes only and shall in no way govern or affect the interpretation hereof. Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to
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1.3

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Photographer terms and conditions - Version 1.0

the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause. 1.4 Unless inconsistent with the context, an expression which denotes any gender includes the other genders; a natural person includes an artificial person and vice versa; and the singular includes the plural and vice versa. Unless inconsistent with the context or save where the contrary is expressly indicated: if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of this Agreement; a reference to "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "Business Day" shall be any day other than a Saturday, Sunday or official public holiday in the Republic. Any reference to "business hours" shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 17h00 (seventeen hours) on any Business Day. Any reference to time shall be based upon South African Standard Time; when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day; in the event that the day for payment of any amount due in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for payment shall be the subsequent Business Day; in the event that the day for performance of any obligation to be performed in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for performance shall be the subsequent Business Day; any reference in this Agreement to an enactment is to that enactment as at the Signature Date and as amended or reenacted from time to time; any reference in this Agreement to this Agreement or to any other Agreement or document shall be construed as a reference to this Agreement or (as the case may be) such other Agreement or document, as the same may have been, or may from time to time be, amended, varied, novated or supplemented; no provision of this Agreement constitutes a stipulation for the
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1.5 1.5.1

1.5.2

1.5.3

1.5.4

1.5.5

1.5.6

1.5.7

1.5.8

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Photographer terms and conditions - Version 1.0

benefit of any person who is not a party to this Agreement; 1.5.9 1.6 a reference to a Party includes that Party’s successors in title. The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply. The use of the word "including" followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this. The Booking Form is intended to preface this Agreement and forms an integral part of this Agreement. Words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in the Booking Form.

1.7

1.8

1.9

APPOINTMENT 1.10 1.11 The Client appoints the Photographer to render the Services to the Client on the terms and conditions set out in this Agreement. The Client agrees that the Photographer’s appointment shall be as the sole and exclusive photographer for the Shoot.

DURATION 1.12 This Agreement shall commence on the Signature Date.

THE SERVICES 1.13 1.14 The Photographer’s Services are detailed on the Website. The Services the Client has requested and which the Photographer shall render to the Client in terms of this Agreement shall be specified in the Booking Form. The precise nature and content of the Services specified in the Booking Form are as read with the details of the relevant Services on the Website as at the Signature Date. The Photographer shall not be required to render any services other than the Services specified in the Booking Form or otherwise as agreed to in writing between the Parties.

1.15

1.16

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Photographer terms and conditions - Version 1.0

SERVICE LEVELS 1.17 The Photographer warrants that it has the expertise and resources to render the Services contemplated herein and shall render the Services with due care, diligence and skill and in accordance with the industry standards expected of expects in its area of expertise. The Photographer reserves the right to edit and release Content which the Photographer deems, in its sole discretion, to be within its artistic standards and of sufficient professional quality to merit such release.

1.18

CLIENT’S OBLIGATIONS 1.19 The Client shall furnish the Photographer with a complete list of people who the Client wishes the Photographer to photograph in advance of the Shoot. The Client warrants that each of the people referred to in clause 1.19 above – grant the Photographer permission to photograph or record them as well as to use the Content in the Photographer‘s advertisements and promotional materials, print and electronic publications, video broadcasts, radio broadcasts or any similar electronic and mechanical means; and waive any right they may have to compensation for the use of the Content as contemplated in clause 1.20.1 above or to inspect and/or approve the finished product in which the Content may be used. The Client agrees that it remains solely responsible for obtaining the necessary consents referred to in clause 1.20 above and shall notify the Photographer, in advance, should the Client be unable to obtain the necessary consents.

1.20 1.20.1

1.20.2

1.21

COPYRIGHT AND LICENSE 1.22 The Parties agree that, by virtue of section 21(1)(e) of the Act, section 21(1)(c) of the Act shall not apply and that the Photographer shall remain the owner of copyright in the Content. The Photographer grants the Client a personal, nonexclusive, noncommercial, fully-paid, royalty free, non-transferrable and worldwide license to use, modify, delete from, add to, publicly display, reproduce, distribute the Content. In the event that the Photographer enters the Content referred to above into bridal competitions, the Photographer shall only enter Content of the marital couple.

1.23

1.24

FEES 1.25 The Client shall, as consideration for the Services to be rendered by
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Photographer terms and conditions - Version 1.0

the Photographer in terms of this Agreement, effect payment of the fees detailed in the Booking Form, alternatively, where the Booking Form does not specify fees payable for the Services, the fees and charges applicable to the Client’s selected Services as stated on the Website on the Signature Date. 1.26 The Client shall further be responsible for paying the Photographer’s reasonable disbursements incurred in the course of rendering the Services. All amounts due to the Photographer shall be paid to the Photographer by the Client without deduction or set-off on the basis set out in the Booking Form, alternatively on the terms set out in the Photographer’s invoice. In the event of the Client failing to timeously effect payment of any amount due to the Photographer in terms of this Agreement, the Photographer shall be entitled to exercise a lien over any or all deliverables pursuant to the Services including, but not limited to, digital Content and photographic prints.

1.27

1.28

WARRANTIES 1.29 Save as expressly set out in this Agreement, the Photographer does not make any representations or give any warranties whatsoever in respect of the Services.

LIABILITY DISCLAIMERS AND LIMITATION OF LIABILITY 1.29.1 TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE PHOTOGRAPHER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. THE PHOTOGRAPHER SHALL NOT BE RESPONSIBLE FOR COLOUR REPRODUCTION PRINT ERRORS MADE BY THIRD PARTY SERVICE PROVIDERS. THE CLIENT FURTHER AGREES THAT – UNDER NO CIRCUMSTANCES WHATSOEVER, INCLUDING AS A RESULT OF THE PHOTOGRAPHER’S NEGLIGENT ACTS OR OMISSIONS OR THOSE OF ITS SERVANTS, AGENTS OR CONTRACTORS OR OTHER PERSONS FOR WHOM IN LAW THE PHOTOGRAPHER MAY BE LIABLE, SHALL THE PHOTOGRAPHER OR ITS SERVANTS, AGENTS OR CONTRACTORS OR OTHER PERSONS FOR WHOM IN LAW THE PHOTOGRAPHER MAY BE LIABLE (IN WHOSE FAVOUR THIS CONSTITUTES A STIPULATIO ALTERI OR STIPULATION FOR ANOTHER), BE LIABLE FOR ANY DIRECT, INDIRECT, EXTRINSIC, SPECIAL, PENAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS, DAMAGE OR DAMAGES OF ANY KIND WHATSOEVER OR HOWSOEVER CAUSED (WHETHER ARISING
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1.29.2

1.29.3 1.29.3.1

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Photographer terms and conditions - Version 1.0

UNDER CONTRACT, DELICT OR OTHERWISE OR AS A VIOLATION OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS AND WHETHER THE LOSS WAS ACTUALLY FORESEEN OR REASONABLY FORESEEABLE). 1.29.3.2 NO CLAIMS OR LEGAL ACTION ARISING OUT OF, OR RELATED TO, THE SERVICES OR THIS AGREEMENT WHICH THE CLIENT MAY BE ENTITLED TO SHALL EXCEED THE AGGREGATE FEES PAID TO THE PHOTOGRAPHER IN TERMS OF THIS AGREEMENT.

INDEMNITY 1.29.4 THE CLIENT HEREBY INDEMNIFIES THE PHOTOGRAPHER AND ITS EMPLOYEES, SERVANTS, AGENTS OR CONTRACTORS OR OTHER PERSONS FOR WHOM IN LAW THE PHOTOGRAPHER MAY BE LIABLE (IN WHOSE FAVOUR THIS CONSTITUTES A STIPULATIO ALTERI OR STIPULATION FOR ANOTHER) FROM ANY LOSS, DAMAGE, DAMAGES, LIABILITY, CLAIM OR DEMAND DUE TO OR ARISING OUT OF: ANY VIOLATION OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS INCLUDING, BUT NOT LIMITED TO, COPYRIGHT; AND/OR BREACH OF PRIVACY AS A RESULT OF THE COLLECTION AND/OR PROCESSING OF PERSONAL INFORMATION (AS DEFINED IN THE PROMOTION OF ACCESS TO INFORMATION ACT, NO. 2 OF 2000) BY THE CLIENT, ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS OR SERVICE PROVIDERS.

1.29.4.1

1.29.4.2

BREACH 1.30 Subject to any other provision of this Agreement providing for the remedy of any breach of any provision hereof, should the Client commit a breach of any provision of this Agreement and fail to remedy such breach within ten days of receiving written notice from the Photographer requiring the Client to do so, then the Photographer shall be entitled, without prejudice to its other rights in law to cancel this Agreement, provided the breach in question is a material breach going to the root of this Agreement; or claim specific performance of all of the Client's obligations whether or not due for performance, in either event without prejudice to the Photographer's right to claim damages. The Photographer shall be entitled to summarily terminate this Agreement in the event of the Client being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the Client entering into a compromise with its creditors
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1.30.1 1.30.2 1.30.3 1.31

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Photographer terms and conditions - Version 1.0

generally. All amounts due by the Client to the Photographer in terms of this Agreement shall, in the circumstances contemplated in this clause, immediately become due and payable to the Photographer. GOVERNING LAW AND JURISDICTION 1.32 1.33 This Agreement shall be governed in all respects by and shall be interpreted in accordance with the laws of the Republic of South Africa. The Customer consents to the jurisdiction of the Magistrates Court in respect of any claim arising out of or pertaining to this Agreement or the services even though any claim the Client may have against the Photographer exceeds the monetary jurisdiction of the Magistrates Court.

FORCE MAJEURE 1.34 If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of strike, lock-out, fire, explosion, floods, riot, war, accident, act of God, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of that Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party. Any Party invoking force majeure shall upon termination of such event giving rise thereto forthwith give written notice thereof to the other Party. Should such force majeure continue for a period of more than 90 days then the Party who shall not have invoked the force majeure shall be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.

1.35

ASSIGNMENT 1.36 No Party ("the ceding Party") shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of this Agreement except with the prior written consent of the other parties, which consent will not be unreasonably withheld, provided that each Party shall be entitled, without the prior written consent of the other parties, to cede, delegate or otherwise transfer all or any of their rights, interest or obligations under and/or in terms of this Agreement to any company which shall be a subsidiary of that Party or which shall be a subsidiary of the holding company of such Party ("the cessionary"), it being recorded that, prior to such cession, delegation, assignment and/or transfer, the ceding Party shall:
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Photographer terms and conditions - Version 1.0

1.36.1 1.36.2

procure that the cessionary shall bind itself as a Party to this Agreement, in the place and stead of the ceding Party; the ceding Party shall bind itself in favour of the other parties as a surety for and co-principal debtor together with the cessionary in respect of the due and punctual performance by the cessionary of all of its obligations arising in terms of and/or in connection with this Agreement; and in the event that the cessionary shall cease being a subsidiary of the ceding Party and/or a subsidiary of the holding company of the ceding Party, the cessionary shall, prior to the happening of such event, cede and delegate and/or transfer all of its rights, interests or obligations in terms of this Agreement to another company, mutatis mutandis on the same basis recorded in this clause , which shall then be a subsidiary of the ceding Party or a subsidiary of the holding company of the ceding Party.

1.36.3

SEVERABILITY 1.37 If any clause or term of this Agreement should be invalid, unenforceable or illegal, then the remaining terms and provisions of this agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this Agreement.

DOMICILIUM AND NOTICES 1.38 The Client chooses as its domicilium citandi et executandi ("domicilium") for all purposes arising from or pursuant to this Agreement, its address and contact details specified in the Booking Form. The Photographer chooses as its domicilium for all purposes arising from or pursuant to this Agreement, the address and contact details set out in the Booking Form. Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other parties of such change. All notices, demands, communications or payments intended for any Party shall be made or given at such Party's domicilium for the time being. A notice sent by one Party to another Party shall be deemed to be received: on the same day, if delivered by hand; on the same day, if transmitted electronically with receipt received confirming completion of transmission; or
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1.39

1.40

1.41

1.42 1.42.1 1.42.2

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Photographer terms and conditions - Version 1.0

1.42.3 1.43

on the third day after despatch, if sent by prepaid courier. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.

GENERAL 1.44 1.45 1.46 This document constitutes the sole record of the Agreement between the Parties in regard to the subject matter thereof. No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein. No addition to, variation or consensual cancellation of this Agreement, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties. No indulgence which any of the Parties ("the grantor") may grant to any other or others of them ("the grantee(s)") shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee(s) which might have arisen in the past or which might arise in the future. The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement. No Party shall be entitled to cede, delegate or otherwise transfer all or any of its rights, interest or obligations under and in terms of this Agreement except with the prior written consent of the other Parties.

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1.48

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