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Rory Baker Photography - Terms and Conditions

PARTIES

Service Provider:
  
Shall be RORY BAKER PHOTOGRAPHY from address 7 Flack Place, Durban North, 4051, KwaZulu-Natal, South Africa. Herein referred to as the ”Photographer”.
 
Client:
 
The person, persons or organization commissioning photography, purchasing physical or online digital products, subscribing to a service or booking an in-person or online course or workshop will herein be referred to as “Client”. 

DEFINITIONS

  1. 'Parties’ the Photographer and the Client. 
  2. 'Specific Terms and Conditions’ as written on the Booking Confirmation refers to the specific terms and conditions agreed between Photographer and Client.
  3. ‘Booking Confirmation’ refers to the Quote, Invoice, Email, Online Booking form or any written confirmation that the Photographer and Client exchange with respect to specific terms and conditions of the service.
  4. ‘Booking Confirmation’ refers to the Quote, Invoice, Email, Online Booking form or any written confirmation that the Photographer and Client exchange with respect to specific terms and conditions of the service.
  5. ‘service’ refers to any shoot, photographic assignment, in-person or online course, workshop or masterclass provided by the Photographer to the Client.
  6. ‘works’ refers to the all images, photos, graphic reproductions, video, prints and any other or printed materials as supplied by the Photographer to the Client.
  7. ‘editing’ means cropping, colour correction, sharpening and removing blemishes (ie. dust spots, obvious pimples, hairs etc.) using professional software.
  8. ‘retouching’ means special editing whereby manipulation of pixels is required to alter the image, for example removing people or objects, deep etching,removing wrinkles, skin smoothing, layering etc.
  9. ‘shoot’ means the photographic assignment for which the Photographer has been commissioned or retained.
ACCEPTANCE OF TERMS AND CONDITIONS

  1. By accessing this Website or making an online enquiry, purchase, registering for a course or workshop whether online or manually the Client is deemed to have read and agreed to these terms and conditions and agrees, as far as what is related to him/her, to be bound to such terms and conditions. If you do not agree to these Terms, please do not use or access the Website.
  2. The Photographer reserves the right to update or modify these Terms and Conditions at any time by publishing a revised version on the Website without prior notice. We encourage Clients to review the Terms whenever you use or access the Website. By continuing to use the Website after the effective date of any modifications to Terms and Conditions, you agree to be bound by the modified terms.
  3. By accepting these terms and conditions, you certify that you are 18 years old or older. If you are under the age of 18, but at least 13 years of age, you may use this website only under the supervision of a parent or legal guardian who agrees to be bound by these terms and conditions.
  4. Unless otherwise noted, the design of the Website, including information, data, text, photographs, videos, audio clips, written posts, articles, comments, software, scripts, graphics, and interactive features that are part of the Website (collectively, “Content”) are copyrights, trademarks, or other intellectual properties owned, controlled or licensed by the Photographer. The Content is intended solely for your personal and non-commercial use. No right, title, or interest in any Content is granted or transferred to you due to your use of the Website. Certain parts of the Website that allow you to share Content on social media platforms grant you a limited license to display the Content as directed, and you understand that you have no other right, title, or interest in or to the Content.
  5. Except as noted above, you may not reproduce, publish, transmit, distribute, display, modify, sell, or participate in any sale of any of the Content or the Website. Your misuse of the Content may subject you to liability under local or international laws. 
  6. We do our best to ensure that information on the Website is complete, accurate, and current. However, information on the Website may occasionally be inaccurate, incomplete, or out of date.
  7. All specifications, products, descriptions, and prices of products on the Website are subject to change at any time without notice. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colours where applicable. However, the actual colour you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colours. We do not warrant the accuracy or completeness of the information, content, or materials provided through the Website.
COURSES AND WORKSHOPS

A Registrations
 
  1. Registrations for workshops and curses are made strictly on a first come first serve basis.
  2. All our courses and workshops are subject to a minimum number of Clients registering before such service goes ahead.
  3. The Photographer may, at its sole discretion, postpone or cancel any course, workshop or service due to minimum numbers not being reached.
B Confirmation, Payments and Delivery
 
  1. A Client’s seat on an in-person workshop or course, is only confirmed once a booking confirmation payment or full payment is made as per the terms published for each service.
  2. Delivery of any online service will only be executed once payment is received in full.
C Cancellation and Refunds for Courses and 1-Day In-Person Workshops
 
  1. Cancellation of any course or workshop for any reason by a Client must be in writing directly to Photographer.
  2. A Client may request to be booked on another scheduled course or workshop and the funds will be carried over. In the event there is a price increase on the future course or workshop such additional cost must be paid by the Client.
  3. If a Client cancels within 15 days from the start of the course or workshop and the Client requests a refund, such refund will be payable within 30 days after cancellation less 20%.
D Cancellation and Refunds 3, 4 and 5-Day Workshops
  
  1. Cancellation of any workshop for any reason by a Client must be in writing directly to Photographer.
  2. A Client may request to be booked on another scheduled workshop and the funds will be carried over. In the event there is a price increase on the future course or workshop such additional cost must be paid by the Client.
  3. If a Client cancels within 45 days from the start of the course or workshop and the Client requests a refund, such refund will be payable within 30 days after cancellation less 30%.
E Cancellation by Photographer
  
  1. i Cancellation of any course or workshop for any reason by Photographer shall be communicated in writing directly to the Clients
  2. A Client can be placed onto the next scheduled course or workshop, or
  3. In the event a Client has already made payment the Client may request a full refund. 
F Limitation of Liability
 
  1. The Client acknowledges that there are inherent risks in participating in courses or workshops and in particular practical sessions in the field and participation is at his/her own risk and he/she shall be responsible for all loss and damage albeit to self, equipment or property.
  2. The Client acknowledges that courses and workshops may be carried out on third party premises and Photographer does not have any control in relation to the procedures, rules, safety, security and layout of the premises.
  3. Without limitation to the foregoing, the Client shall not hold Photographer responsible or liable in any way for the following: (a) Any delays which may arise during the course or workshop due to any circumstances whatsoever; (b) Any change in the proposed itinerary (including but not limited to any travel or accommodation arrangements) for the course or workshop arising from any circumstances whatsoever; © The occurrence of any conditions or illnesses which may necessitate medical attention during the course of the course or workshop; and/or (d) Any loss, damage, injury, loss of life, cost or expense which may arise as a result of the social, civil and/or political situation in the place where the course or workshop is been held. (e) Any loss or damage to camera equipment or personal items. (f) The Client further represents and warrants that he/she shall indemnify and hold Photographer, its affiliates, subsidiaries, shareholders, officers, employees, agents or contractors harmless from any loss including but not limited to loss, damage, costs, actions, claims, liabilities, proceedings, demands, risks, charges and/or expenses of whatsoever nature or howsoever arising, inclusive of delays, cost of cover, loss of data, loss of opportunities and inconveniences, special, incidental, punitive, exemplary or consequential damages (whether in delict, contract or otherwise) whether direct, indirect, joint, several, actual, contingent or otherwise (including legal fees on a full indemnity basis) and includes but is not limited to claims made by third parties and claims for defamation, infringement of any intellectual property rights, death, bodily injury, property damage or pecuniary losses howsoever arising.
G Other
 
  1.  Photographer will provide each Client with detailed information about the course or workshop including a detailed itinerary where applicable at a reasonable time prior to the start date of the course or workshop. The Client is responsible to ensure he/she has read and understood the contents of the document to be fully prepared for what to expect.
  2. Photographer will from time to time use images and/or video takes while on a course or workshop for marketing purposes. The Clients booking form shall serve as a model release giving consent and rights to Photographer to use such images or video for promotion and marketing of future photo courses or workshops, including online or in print, and the Client therefore grants Photographer a perpetual, royalty free, worldwide, irrevocable license to use such media publicly or privately for marketing purposes. Clients waive any rights, claims or interest they may have to control the use of their identity or likeness in the photographs and videos and agree that any uses described herein may be made without compensation or additional consideration to them.
  3. The Client certifies and acknowledges that when he/she submits the Online Registration Form or a Manual Registration Form the he/she has read and understood all of the provisions of these terms and conditions and shall fully and faithfully comply with such provisions.
  4. Location, date and time shall be as defined in writing on the Booking Confirmation or communicated in writing thereafter.
PHOTO SHOOTS / COMMISSIONED WORK

A Scope of Services
 
Shall be as defined in the Specific Terms and Conditions on the Booking Confirmation. 

B Location, date and time shall be as defined in writing on the Booking Confirmation or in writing on any other communication.

C Cancellation, delays, postponement and rescheduling is subject to any terms or conditions specified in the Booking Confirmation
 
  1. If a Client cancels a shoot for what ever reason within 7 days of the Shoot the Client will be responsible for full payment as if the Shoot had taken place unless the Shoot is rescheduled or an amicable settlement arrangement can be made.
  2. If a Client delays, postpones or reschedules a shoot for what ever reason within 24 hours of the shoot or on the day of the shoot the Client will be responsible for 50% of the Photography fee as agreed.
  3. In addition to the above in, the Client will be responsible to reimburse the Photographer for any out-of-pocket expenses resulting from the cancellation, postponement or reschedule of that Shoot. Such expenses may be but not limited to: travel, deposits on venues, costs incurred from third party hires like lights, backdrops etc., assistant booking cancellation fees and so on.
  4.  Notwithstanding the above, if the Photographer cancels, postpones or reschedules a shoot because of weather or other safety factors, the Client will be responsible to reimburse the Photographer for any out-of-pocket expenses resulting from the cancellation, postponement or reschedule of that Shoot. Such expenses may be but not limited to: travel, deposits on venues, costs incurred from third party hires like lights, backdrops etc., assistant booking cancellation fees and so on. 
D Payment
 
  1. Payments shall be in full to confirm a booking unless specified and agreed in the Booking Confirmation.
  2. Should any amount fall into arrears, the Photographer will have the right to claim interest on such amount. The Photographer may charge interest on any sums outstanding at the maximum rate permissible by law compounded monthly from the date on which they become due. Any latitude or allowance whatsoever which the Photographer may grant to the Client will not be construed to be a waiver of the Photographer's rights, or a novation of any terms of the contract.
  3. The debtor will be responsible for the payment of all legal costs and collection charges where outstanding debts handed over for collection.
  4. Note that all payments made, either by way of an internet / electronic / bank deposits funds transfer is to be free of commission and bank charges, failing which these charges are to be carried by the Client and will be added to the final account rendered by Photographer.
  5. Cash payments not accepted.
  6. No Cheques will be accepted.
E License for Use
 
  1. Unless specified otherwise in the Booking Confirmation the Photographer grants the Client a license to use the Works as per the terms set out in this Agreement. 
  2. Notwithstanding the aforementioned the Photographer grants the Client license to use the Works on Client’s social media, websites, catalogue materials and in house printed materials not larger than the standard A4 size in perpetuity.
  3. In any event Works may not be sold, nor shared with third parties, nor distributed freely for third party use nor used for poster and billboard advertising and tabloid advertising without written agreement and appropriate remuneration agreed between Photographer and Client. 
  4. No other right besides those specifically included in the license are granted in respect of the Works provided.
  5. All rights not expressly granted to the Client remain the exclusive property of the Photographer. The Client may not transfer or assign this License for Use without the express written consent of the Photographer. In any event this license for use is conditional upon receipt of payment in full by the Photographer within the payment period agreed. 
F Copyright
 
Not withstanding the terms of the COPYRIGHT ACT NO. 98 OF 1978 (as amended) Section 21, it is hereby agreed that the Photographer is recognized and constituted as the author of the commissioned works produced, shall be the owner of the copyright herein throughout the world and acknowledged as such.
G Indemnity
 
  1. The Client indemnifies the Photographer against all or any claims of any nature or description, civil or criminal, which may be brought or instituted against the Photographer by any third party or authority, arising during the course of the Shoot and related in any way thereto, or alleged to arise from or relate to the subject matter of any Works by the Photographer at the insistence or request of the Client. Notwithstanding the aforementioned the Photographer may at anytime refuse to enact any Works that the Photographer deems as inappropriate or not in line with the spirit of the original Brief or Scope of Services as agreed.
  2. The Client agrees to indemnify and save harmless the Photographer against all liabilities, claims and legal costs arising out of the Clients use of the photos. 
H Electronic Imaging and Manipulation
 
  1. It is accepted that manipulation of Works by the Client may be construed as damaging to the aesthetics and intent of a Photographer's Works.
  2. Accordingly, manipulation of Works or portions thereof shall only be with the express permission and understanding of the Photographer.
  3. Manipulation of any Works may only take place for the purpose of the original Brief and Quote. No other use of the Works, or portions thereof, is permitted outside of the context of the initial Shoot its related Briefs and Estimate, and for which the Photographer has been paid.
I Hours of Work, Overtime and Delays
 
  1. Photographers normal hours of work are from Monday to Friday from 8:00 am to 5:00 pm, which includes a 45 min break for lunch.
  2. Saturdays, Sundays and Weekday Holidays will be charged at up to 135% of Photographers normal rate.
  3. Where Photographer is charging in advance for overtime, (night work, weekends and public holidays), such overtime will be agreed with Client and included in the Booking Confirmation.
  4. Delays caused to a Shoot through no fault of the Photographer will be charged at Photographers normal hourly rate or agreed Shoot rate or the appropriate overtime rate. Such delays may include but not be limited to unavailability for whatever reason of people, props or critical items, or weather, or no services/utilities.
  5. At any Shoot where it is anticipated to be a delay the Photographer will inform the Client of such delay as soon as is practical.
  6. Where a Shoot has been booked as a package rate, i.e. lifestyle shoots, corporate portraits, delays if charged will be charged at Photographers normal hourly and or overtime rate or as per the Specific Terms and Conditions. Time booked for a Shoot includes Photographer’s setup and breakdown time.
  7. Where a Photographer has hired a studio, the studio overtime is payable by the Client. 
J Ownership of Negative/ Raw Images
 
The ownership of original negatives/raw files is vested in the Photographer. Negatives/raw files shall remain the property of the Photographer and may only be acquired by the Client by special agreement or on payment of an agreed fee.

K Right to Credit Byline
 
  1. General Photography: The Photographer's name will be printed on or in reasonable proximity to all published reproductions of the photograph(s) unless otherwise agreed.
  2. Editorial or Advertorial Photography: In line with worldwide practice, the right to a byline on all photographs is accorded because of the lower photographic charge, and the related 'exposure' of the Photographer's name. Accordingly, the Photographer's name shall be printed legibly on or near the related photographs on each and every page, in type no smaller than 10 point. Where the Byline has been omitted by error or otherwise, the Photographer shall have the right to charge a further amount of up to 300% of the full Photographic Charge for the assignment.
L Non Usage
 
Where a service has been accepted but works are not used, the Photographer shall be paid the full fee and expenses of the shoot as confirmed on the Booking Confirmation.

M Weather
 
  1. The Photographer is directly responsible for calling for a weather cancellation, where in his opinion, the successful completion of the assignment, as per brief, is at risk. No liability as to the professional judgment of this will accrue to the Photographer, and cancellation fees will apply as per this Agreement. 
  2. The Client is responsible for taking out weather insurance. The Client shall pay the premiums of such insurance, but has the option of refusing insurance, at his/her own risk, and is liable to cover all costs accrued due to non - insurance.
N Limitation of Liability
 
  1. In the unlikely event of a total photographic failure or cancellation of this contract by either party or in any other circumstance the liability of one party to the other shall be limited to the total value of the contract. Neither party shall be liable for indirect or consequential loss.
  2. Without detracting from the generality of the above, Photographer warrants that he takes the utmost care with respect to exposure, transportation, and processing the photographs. However, in the unlikely event that any Materials are damaged in processing, lost through camera or other media malfunction, lost in the mail, or otherwise lost or damaged without fault on the part of the Photographer, or in the event the Photographer fails to perform for any other reason beyond the Photographers control, the Photographer’s liability is limited to the return of all payments received for the event package.
  3. The Client(s) indemnifies and holds the Photographer harmless against all liability, claims and expenses, including attorney’s fees, arising from Client(s), and/or any third parties use of the Photographer’s Material and / or any loss, damage or misuse of any Photographs supplied by Photographer, granted that there is no fault on the part of the Photographer.
  4. If there is any failure to capture certain images that Client have requested or that were discussed at our planning meeting, such omissions shall not void this agreement nor be a breach of this agreement and will not cause any compensation to be made to the Client(s) and the Photographer shall not be liable for same.
  5. In the event of the Photographer being unable to attend to the Shoot due to any cause beyond Photographer’s control, Photographer reserves the right to appoint another photographer to attend to the Shoot on their behalf to undertake the Shoot to his/her best ability. If the situation should occur and a suitable replacement is not found, responsibility and liability of Photographer is limited to the return of all payments received.
  6. Re-shoots may be arranged if practicable but the Photographer will not be responsible for any further costs ancillary hereto.
  7. Proceedings and the venue of the arbitration shall be Durban. The arbitrator shall make an award in respect of the costs of the arbitration having regard to the substantial success of each Party in the outcome of the proceedings. The Parties irrevocably agree that the decision in the arbitration proceedings shall be final and binding on the Parties.
O Confidentiality
 
The Photographer will keep confidential and will not disclose to any third parties or make use of material or information communicated to him/her in confidence for the purposes of photography, save as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the commission.

P Other Terms
 
  1. Where additional expenses are incurred by Photographer due to changes in the original brief by the Client or by circumstances beyond the photographers control, the Client agrees to pay such reasonable expenses and/or fees at the Photographers normal rates.
  2. Photographer may use images for own promotional purposes.
  3. The Client agrees to indemnify and save harmless the Photographers against all liabilities, claims and legal costs arising out of the Clients use of the photos.
  4. Prices quoted by the Photographer are subject to E&EO (errors and omissions excepted).
DISPUTES

  1.  Should any dispute arise under or in connection with this Agreement the Parties shall first use mediation to resolve it by mutually appointing a single Mediator. The costs of the Mediator shall be shared equally between the Parties and any other legal costs incurred by either Party with respect to the dispute shall be for each Parties own account.
  2. If mediation fails the dispute will be finally settled by arbitration before a single arbitrator appointed by agreement or (in default) nominated on the application of either party in accordance with the rules of the Arbitration Foundation of South Africa (“AFSA”). The AFSA arbitration rules shall govern the arbitration proceedings and the venue of the arbitration shall be Durban. The arbitrator shall make an award in respect of the costs of the arbitration having regard to the substantial success of each Party in the outcome of the proceedings. The Parties irrevocably agree that the decision in the arbitration proceedings shall be final and binding on the Parties.
APPLICABLE LAW
 
This agreement will be governed by and construed in accordance with the Laws of South Africa.

AMENDMENTS Amendments to these terms may be made at any time, and continued use of the service constitutes accept
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