Terms & Conditions
Terms and Conditions – for The Knysna Photographer (Andrew Aveley)
Henceforth the following definition of words will apply: “Photographer” refers to the person or organization requested to take and supply the photographs. In this instance the Photographer is Andrew Aveley who also owns all copy right on all photographs produced by the employees and subcontractors of Andrew Aveley photographs whilst in his employee.
(a)“Photographs” refers to all photographic material, in film, print or electronic formats supplied by the photographer.
(b)“Client” refers to the person or organization, its representatives, successors, assignees, agents and affiliates requesting the provision of photographic services and supply of photographs.
(c)“the site” or “site” = http://www.theknysnaphotographer.co.za and http://www.andrewaveley.com “we” or “us” = The Owner – Andrew Aveley.
(d)“member” or “members” = Any person registered as a member on the site
(e)“you” or “your” = You as a member of the public making use of this site
(f)”the company” or “company” = “The Knysna Photographer” and all parties indemnified by us.
It is the client’s responsibility to give the photographer a full written brief. Where specific details are missing in the brief, the client undertakes to accept the photographer’s interpretation.
The client is responsible for having a representative present at all times when the assignment is being executed to approve style and content. Where no representative is present, the client shall accept all decisions made by the photographer in relation to execution of the brief
USAGE RIGHTS AND LICENSING
An Exclusive License is granted to the Client for the usage specified in the brief, estimate or order confirmation. This Exclusive License is conditioned upon acceptance of each term set forth in this agreement, including but not limited to, receipt of payment in full by the Photographer within the payment period agreed. Unless otherwise stated the duration of the license shall be six times the periodicity of the publication for editorial work, or 90 days, whichever comes first. All rights not expressly granted to the Client remain the exclusive property of the Photographer. The Client may not transfer or assign this Exclusive License without the express written consent of the Photographer
For editorial use, Client agrees to provide a credit line in the form of “© Andrew Aveley – The Knysna Photographer ” in type no smaller than the nearest text and immediately adjacent to the picture used, unless agreed in writing prior to the shoot-taking place
This agreement shall be governed by the laws of the Republic of South Africa, with the exception listed in FIRST COPYRIGHT OWNERSHIP below.
FIRST COPYRIGHT OWNERSHIP
The client recognizes that the Photographer is the author of the Photographs and the owner of the copyright subsisting in them, irrespective of the stipulations of Sects 21 (1)(c) and 21 (1)(e), with amendments, of the South African Copyright Act
No 98 1978 as amended.
(a) In accordance with section 21 (1)(e) of the South African
Copyright Act No 98 of 1978 as amended, the provisions of Section 21 (1)(c) shall NOT apply to the photograph(s) to be made in terms hereof and the photographer will be the author of the work(s) and the copyright subsisting therein.
(b) Andrew Aveley supplies the technical and artistic ability to illustrate an idea photographically, and sells the right to reproduce those images in a given context. No property or copyright in any images shall pass to the Client whether on its submission, or on Andrew Aveley ‘s grant of reproduction rights in respect thereof.
(c) Any reproduction rights granted are by way of license and no partial or other assignment of copyright shall be implied.
A standard first payment of 50 percent of the estimate, out of town expenses and 100% of any hire costs, including fees payable for any technicians essential to the shoot are payable before the assignment. This can, be waived by the “photographer” for estimates below R3000.00 where full payment will be due prior to any final proofs are delivered.
Full payment must be received by the Photographer within 3 days of submission gallery to the client for the picking of final photographs. Final photographs will not be released before full payment has been made unless agreed before the shoot has commenced. If payment is not received by the due date, any use of the Photographs may, at the Photographer’s discretion, be considered unauthorized and the Exclusive
License withdrawn and become subject to renegotiation. The Client agrees to pay interest at 10% above the prime rate per month or part thereof on overdue payments.
All Photographs commissioned for personal use which will not be used in a publication must be paid for in full before usable copies of the photographs would be released to the client.
Where additional expenses are incurred by the photographer due to changes in the original brief by the Client or by circumstances beyond the Photographer’s control, the Client agrees to pay such reasonable expenses and/or fees at the Photographer’s normal rates.
It is always best to identify the extent of usage for the images before entering the agreement because this greatly affects price. Usages not requested at the time of the shoot can be renegotiated at a later stage.
The client is responsible for all expenses incurred up to the time of cancellation, plus 50% of the Photographer’s fee. If cancellation is given less than two (2) business days before the shoot, the client will be charged 100% fee. If postponement given less than two (2) business days before the shoot, the client will be charged 50% fee, but this will be waived if the shoot is re commissioned, unless otherwise agreed. The client will be charged 100% fee if postponement is due to weather conditions on location or 50% if postponement due to weather conditions is before departure. The client is responsible for taking out weather insurance.
The Photographer retains the right to use the Photographs in any manner, at any time and in any part of the world for self-promotional purposes. During the period of the Usage License granted in the Usage clause, the Client is authorized to publish the Photographs to the exclusion of all other persons other than the Photographer’s right to self promotion as noted above. After the expiry of the Usage license, The Photographer shall be entitled to use the Photographs for any purpose including selling the photographs at his discretion unless requested not to in writing
The Client has no right to reject work on the basis of style or composition unless a rejection fee has been agreed in advance.
In the event of any irresolvable dispute in the interpretation of the terms of this contract, the Client agrees to submit the dispute to either an arbitration process or mediation process, at the photographers option
If the client decides to kill the work after the brief has been met and work has been delivered by the deadline date, full payment must be made. If the Photographs are not publishable, through no fault of the Photographer, the Client agrees to pay 100% of the photographers account.
The Client agrees to indemnify and save harmless the Photographer against all liabilities, claims and legal costs arising out of the Client’s use of the Photographs. The client indemnifies the photographer against any claims brought against the photographer by any third party during the shoot.
In the event of non-payment or other breach of this agreement by the client, the Client shall pay all of the Photographers costs and expenses incurred in enforcement of the terms of this agreement, including the Photographer’s attorney’s fees.
No variation of the terms of this contract shall be recognized unless agreed in writing.
OWNERSHIP of the website:
Site copyright © 2020, The Knysna Photographer owned by Andrew Aveley. All rights reserved. The information and materials contained in this site, including text, photographs, graphics, links or other items, are provided on an “as is” and “as available” basis.
The Knysna Photographer does not warrant that the functions contained in the materials on this site will be uninterrupted or error-free, that defects will be corrected, or that this site or the server that makes it available are free of viruses or other harmful components. Andrew Aveley Photography does not warrant or make any representation regarding the use or the results of the use of the materials in this site in terms of their correctness, accuracy, reliability, or otherwise. Any visitor to www.andrewaveley.co.za or www.andrewaveley.com assumes the entire cost of all necessary servicing, repair or correction. Applicable law may not allow the exclusion of implied warranties so the above exclusion may not apply to you. We may amend, add to or replace these terms and conditions at any time.
Any amendments, additions or replacements will be effective from date of posting. The information contained within this website is constantly being updated and/or modified. While we do try to ensure the reliability of all information published, we cannot guarantee the accuracy of such information. For this reason, we can assume no liability or responsibility for any errors or omissions in the content of this site. You waive, release, discharge and relinquish any and all claims that you now have or may have against us, our affiliates, subsidiaries, shareholders, directors, officers, employees, agents and representatives which are connected with, arise out of, relate to or are incidental to the use of our Site.
In no event will we be liable to you for any damages of any kind. Including, but not limited to, compensatory damages, loss of profits, lost data of any form or special, incidental, indirect, consequential or punitive damages of any kind whether based on breach of contract or warranty, negligence, product liability or otherwise, even if the company is advised of such damages.
You agree to indemnify and defend us, our affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives harmless from and against any and all claims, loss, damage, tax, liability and/or expense that may be incurred by the company’s indemnified parties arising out of or in connection with the performance of its duties as described in this agreement (except as caused by the gross negligence or willful misconduct of the company including the legal costs, fees and expenses of defending ourselves against any claim by any or all of the parties to any transaction and/or by any other person and/or as a result of your negligent act or omission.)
You further agree to indemnify and hold the company harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of: The violation of these terms by you, or The infringement by you, or other user of the Service using your user name and password, of any Intellectual property or other right of any person or entity. These indemnities are subject to “Our liability to you” and “Limitation of our liability to you”. We do not guarantee continuous, uninterrupted or secure access to the Service, and operation of our Site may be interfered with by numerous factors outside of our control. Although we strive to provide the best facilities we can to ensure maximum speed and availability from our servers and software, the company does not offer any SLA (Service Level Agreement) or any guarantee in relation to Service up-time or availability for any Service, Product or Premium Subscription Service.
All Services provided are on an ‘as is’ basis. We may refuse the right for you to use our Site or any part of our Site or features if you give information, which is untrue, inaccurate or incomplete. We may also suspend, cancel or terminate your access to our Site or any part of our Site if you breach or fail to observe these terms. We reserve the right to determine whether or not your conduct is consistent with the letter and spirit of these terms and may, at our sole discretion, immediately terminate your use of our Site if your conduct is found to be inconsistent with these terms. We reserve the right to remove any information posted by you at any time and without warning.
EXTERNAL LINKS TO OUR SITE
Our site contains hyperlinks to external websites, which are operated by third parties and are entirely independent of this site. We are not responsible or liable for the content of these linked websites or for any hyperlinks contained on these linked websites. The inclusion of any site acknowledgments, identification of any person or entity in the site, or any hypertext link to another person or entity shall not, in any manner, be construed as an endorsement of such person’s or entity’s World Wide Web site, products, services, or contributions to the site. You activate a link on our website entirely at your own risk. Other websites that may provide a link to our web site are entirely independent of our site. Any direction by a third party to this site shall not, in any manner, be construed as an endorsement by us of such party’s World Wide Web site, products, or services.