Photography Terms Of Service Agreement

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Photography Terms Of Service Agreement

Terms and Conditions of Marketing One Group Pty Ltd (ABN: 99 675 415 924)

These Terms of Service (“Terms”), are entered into by and between Marketing One Group Pty Ltd (ABN: 99 675 415 924) and or its associates, related parties, successors and assigns (collectively referred to as ‘Provider’) and the Client. You also accept the Terms of Service when you undertake any Photography package or service.

Marketing One Group is a website design & online marketing agency which also offers the following services to clients in Australia: Online Marketing, Website Development, SEO, Search Engine Optimisation, Graphic Designing, Social Media Marketing, SEO Copy Writing, Article Writing, Hosting, Directory Submissions, Press releases submissions, blog postings, social bookmarking & Google places / maps optimisation.

1. Definitions
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s) with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 “Client Content” means all materials, information, images/photographs, writings, logos and other creative content provided by client for use in the preparation of and/or incorporation in Marketing One Group’s Program
1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australia Copyright Law.
1.4 “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.5 “Services” means all services and the work product to be done by Marketing One Group.
1.6 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration and Content Writing.
1.7 “Client” Client means the individual or an organisation whose details are listed in the Service Order Form as the purchaser of the Services
1.8 “Services” The Provider offers professional photography solutions for businesses and organisations. The Services supplied by the Provider include, without limitation, any or all of the following:
a) Professional Photography:, b) Image Editing, c) Equipment Hire:
1.10 “Provider”: The “Provider” refers to Marketing One Group who is providing all the services mentioned in the section (1.9) above to the client.

2. Photography Service Agreement:
A signed binding agreement between the Provider and the Client outlining the terms and conditions of image use, purchases, pricing, scheduling etc & must be signed before any session takes place.

3. Fees and Charges: 

Costs associated with any photographic session, all prices are Australian AU (see deposits & payments)

4. Proofs: 

Samples of all edited photos, in which The Photographer holds all exclusive rights to. These cannot be saved to Client’s computer, used on social networking sites, or printed, and will contain either Marketing One Group’s logo, watermark, or proof stamp.

5. Inclusive Fees: 

Services and other that are included in the price, This includes, but is not limited to The Photographer’s TIME: Consultations, time spent PREPARING for shoot, time spent DURING the shoot, and time spent EDITING the shoot. Preparing: Includes but is not limited to time e-mailing, setting up studio (bringing out necessary props, reconfiguring lighting for shoot, sanitising props that may be used with newborns and children, and so on). During Shoot: Standard Sessions in studio up to 1 hour, Standard Sessions on-location includes travel time. POST-PRODUCTION: Depending on the amount of images post processing can take anywhere from 3-4 hours. This also includes time spent setting up Client’s online gallery, ordering investment products etc. Also included is general expense and wear and tear of props and equipment (including but not limited to memory cards, lighting, light stands, diffusers, light bulbs, props, camera, lenses, and editing equipment). Fees do not include any fees or expenses associated to travel/transporting equipment unless otherwise specified.

6. Digital Purchases: 

High-resolution digital copies of the final images. When purchased, Client receives license for Royalty-free for personal use. The owner (“Owner”) of the copyrighted photograph or video being purchased (the “Work”), hereby grants you the non-exclusive, non-assignable, non sub-licensable, and perpetual right to use, reproduce and distribute the copyrighted Work for personal non-profit purposes, and to incorporate the copyrighted Work, in whole or in part, into derivative works for non-profit distribution. You are prohibited from using the Work for any other purpose, including: using, reproducing or distributing the Work and/or materials incorporating all or any part of the Work for profit; selling or distributing electronic copies of the Work as standalone files or as part of a product from which a person is able to extract the Work as a standalone file; distributing the Work in or as part of an electronic template (e.g., as an image available in a word processing or web page creation application) intended to be reproduced by third parties on electronic or printed products; or using the Work as part of a trademark, service mark or logo. Owner retains all other rights in the Work and any derivative work, including without limitation, the right to use, copy, sell, license, and distribute copies of the Work in all markets and territories. In consideration for the grant of this non-exclusive license, you agree to pay Owner the amount specified, due and payable immediately prior to your downloading a digital copy of the Work. This Agreement shall be construed and enforced in accordance with the laws designated by Owner, now or in the future.

7. Sole Photographer During Session: 

During your photography session with Marketing One Group, the Photographer will be the ONLY person permitted to take photos. Whilst the Photographer is shooting it is preferred that parents, friends, family, and anyone else attending the session should NOT be taking any photos with cameras, camera phones, tablets, etc, and must be informed of this rule. If photos are taken with cell phones or personal cameras, Marketing One Group may cease its activities until the interference has ceased, in the case of a non compliance then Marketing One Group will cancel the session without refund or any products being offered.

8. Facebook Sharing and Other Social Media Platforms:

8.1 It is understandable that the Client might want to post their new photographs on the Internet via Facebook, Twitter, Tumblr, Instagram, and/or any other social media outlets. This agreement will serve to allow posting of watermarked low-resolution photos only to social media sites and in the case that Marketing One Group is credited and that photos are NOT altered in any way with editing or filters. Additionally, it is understood that the client MUST NOT remove, or have removed, watermarks from Internet images supplied to them or that Marketing One Group has uploaded to Facebook or its website, or from the low-resolution images offered for free to clients who have purchased prints. The Client and family members can purchase photographs that do not have a watermark.

8.2 You are permitted to click the “share” button on any photos posted to Marketing One Group’s Facebook Page.

8.3 Sharing can NOT be done via screen shots of photos on Facebook or the Proofing gallery.

8.4 Any Campaign / Contests hosted by Marketing One Group is in no way sponsored, endorsed, administered by, or associated with Facebook or any other social media platforms.

9. Terms and Termination:

* You the client(s) may be asked to sign a release form for “Promotional Purposes” (no obligation to sign)

9.1 By signing or entering any such content (e.g., photo, video, text, etc.), You the client(s) understand, acknowledge and agree that the Provider, anyone acting on behalf of Marketing One Group, and Marketing One Group’s licensees, successors, and assigns, shall have the right, where permitted by law, to print, publish, broadcast, distribute, and use in any form of media (including internet) now known or hereafter developed, in perpetuity and throughout the World, without limitation, your entry, name, portrait, picture, voice, likeness, image, statements, and biographical information for news, publicity, information, trade, advertising, public relations, and promotional purposes. without any further compensation, notice, review, or consent. If the content you have entered is claimed to constitute infringement of any proprietary or intellectual proprietary rights of any third party, You shall, at your sole expense, defend or settle against such claims. You shall indemnify, defend, and hold harmless Cory Small Photographer from and against any suit, proceeding, claims, liability, loss, damage, costs or expense, which Marketing One Group may incur, suffer, or be required to pay arising out of such infringement or suspected infringement of any third party’s right.
9.2 Marketing One Group is in no way sponsored, endorsed, administered by, or associated with Facebook or any other social media platforms.

10. Deposits / Payments and Payment Plans – Australian $AU:

10.1 Pre-ordering: Upon prior notice of ordering, if client(s) are suffering financial hardship alternative payment arrangements can be organised, the following applies:

a) Payment Contract: All client(s) choosing a payment plan shall sign a payment plan that states the total amount owed, the agreed payment instalment amount and frequency to be payed and duration of the term of the payment plan (3 months)

b) Upfront Percentage Fee: client(s) shall pay the session fee and an upfront percentage fee of 30% of the total finalised price on any investment purchases ordered.

c) Minimum Spend Limit: To qualify for a payment plan the minimum spend limit will be no less that $500.00 (five hundred dollars)

d) Payment: Client(s) shall have the choice of either paying via a 3rd party company (fees and charges apply) or via instalments into a nominated bank account organised by Marketing One Group or with cash payment where a signed receipt will be supplied for proof of payment, upon finalisation payment of the agreed amount in full client(s) shall be able to collect their investment purchases.

10.2. Ordering: At such time as this service is completed, client shall then view, select and agree that they are 100% satisfied with the image quality and their chosen image selections before any ordering will be carried out.

a) Client(s) that opt for a personal payment plan: no ordering will take place until 75% of the total amount owed has been payed, if a client has a change of mind during any part of the payment plan term, or after any ordering takes place, any monies payed becomes non refundable and/or if the full purchase is not completed and paid in full by the end of the agreed payment term duration (3months).

b) Client(s) that opt for a payment plan via a 3rd party company: shall be subject to that companys full fees and charges and terms and conditions.

c) Client(s) NOT opting for a payment plan: agree to either pay in full or pay the required deposit of 50% before any ordering takes place with the remaining balance to be paid if full upon collection, if a client has a change of mind after the ordering takes place the 50% deposit becomes non refundable and/or if the full purchase is not completed and paid in full within 30 days of ordering the purchase will be void and no refund offered.

11. Bookings / Cancellations / Rescheduling / Refunds:

‘No refund if you simply change your mind’

11.1 Session Fee: required for all sessions, will become nonrefundable when:

a) The required 48 hour cancellation notice prior to any scheduled session date is not given.

b) Client(s) fails to turn up or give prior notice of unavailability without an explanation or a reasonable valid reason on the day.

c) With the exception of rain interference limited to outdoor sessions only, a full refund or reschedule will be offered.

11.2 For any other reasons clients are permitted one rescheduled session only, if a rescheduling request is needed it must be done at least 48 hours before the booked session date. After one permitted rescheduling, any further rescheduling will require an additional booking fee to hold your spot.

11.3 Failure to Perform: If the Photographer cannot perform this Agreement due to a fire or other casualty, strike, act of God, or any other cause beyond the control of the parties, or due to Photographer’s illness, then the Photographer shall return the deposit to the Client but shall have no further liability with respect to the Agreement. This limitation on liability shall also apply in the event that if any photographic materials are damaged in processing, lost through camera malfunction, lost in the mail, or otherwise lost or damaged without fault on the part of the Photographer. In the event the Photographer fails to perform for any other reason, the Photographer shall not be liable for any amount in excess of the retail value of the Client’s order.

11.4 Investment Products: Clients are advised to inspect all investment products at their viewing/collection consultation and arise any complaints such as defects, incorrect ordering or any complaints during that time.

After inspecting, accepting and leaving with their investment products (payed in full) clients acknowledge, confirm and agree that their investment products have no damage, inherit qualities or faults of any kind and that they are 100% satisfied with their purchase and have no further complaints, no refund offered if you simply change your mind after this period.

11.5 Quality Control: Marketing One Group has strict quality control procedures in place and inspects all products for any defects, damages, inherit qualities before being released for viewing or collection to any client(s) this procedure ensures client(s) receive only the highest quality products.

12. Proofs and Ordering:

Within 2 days of your session a sneak peek of 1-2 images can be made available on the Providers Facebook Page . Proofs should be ready for viewing at either a private consultation or on Marketing One Group’s website in a password protected gallery in around 7-10 days for selection and ordering. Upon ordering your investment products they will be made ready for inspection and collection within 4-6 weeks of ordering. Upon receipt of payment your gallery will be live for 7 days. Clients can request a re-opening of their gallery at an additional cost of $50.00 for a further 7 days.

13 Edits

13.1 Marketing One Group reserves the right to edit and release only the images that are deemed creditable as professional in quality and within Marketing One Group’s standards. The Provider enhances photos via corrections to contrast, lighting, and colour, as well as removal of acne, rashes, and accidental last minute scratches, bumps, etc. Marketing One Group may alter any inherent qualities of a person, as it is considered a “cosmetic edit” Cosmetic edits include, but are not limited to: removing unwanted facial hair, adding hair to balding head, changing hair colour, changing shape of nose, eyes, body, etc. It is requested the client(s) take care of all cosmetic changes before their session if they do not wish to have grey hair, facial hair, etc in final photos.

13.2 Once again, edits are solely made by Marketing One Group, any edits by clients or family members to digital files will be a breach of copyright.

14. Copyright and Reproductions

14.1 Marketing One Group (The Provider) shall own the copyright on all images created, retain sole ownership of all raw digital files and shall have the exclusive right to make reproductions and edits of any kind. The Provider shall only make reproductions for the Client or for the Provider’s portfolio, samples, self-promotions, expo stalls, entry in photographic contests or art exhibitions, editorial use, website, or for display within or on the outside of the Provider’s studio.
14.2 In the case of copyright breach or if such attempt be made, Marketing One Group reserves the right to seek damages to the fullest extent permitted by law.

15 Commissioned Client’s Usage
15.1 Client(s) agree that all commissioned photographs (paid for by client/s) shall have shared copyright with Marketing One Group (unless otherwise stated) and can only be used under the terms of any usage agreement set out by Marketing One Group.
15.2 The Client is obtaining photography services for personal use only, and shall not sell said prints. If Client is obtaining prints or digital files for newspaper announcement of a wedding, editorial use, social media use or on a website etc, Photographer authorises Client to exclusive rights to reproduce, publish or communicate print(s) or digital files in this manner. In such event, Client shall run a credit for the Provider adjacent to the photograph. For any other use outside the scope of this agreement Client(s) shall contact Marketing One Group to discuss further usage agreements and / or commission. If Client is obtaining photography services for commercial use, Client shall give photographer credit where applicable, and agree to post advertisements and/or business cards on behalf of The Provider at their place of business.

15.3 Client(s) are never permitted to edit or alter any photo that is copyright of Marketing One Group, In the case of copyright breach or if such attempt be made, Marketing One Group reserves the right to seek damages to the fullest extent permitted by law.

Photographers & Copyright

16. Inherent Qualities

Client is aware that colour dyes in photographic prints may fade or discolour over time due to the inherent qualities of dyes as well as USB, DVD or CD media which may deteriorate due to oxidation, mechanical or technical failure or other unforeseen reasons, and Client(s) releases Photographer from any liability for any claims whatsoever based upon the deterioration due to such inherent qualities. Additionally, The Provider is not responsible for inevitable low-quality resulting from Client(s) printing from any and all non-professional quality printing labs, such as large retail shopping outlets or personal printers etc. It is to be noted that Marketing One Group suggests printing from professional printing labs only in order to receive the highest quality prints.

17. Portrait Care

Handle your portraits with extreme care. Damage incurred as a result of improper handling, framing or hanging is the responsibility of the client.

18. Safety

Marketing One Group reserves to right to terminate coverage and this contract, and leave the location of the event(s) if the photographer/s representing Marketing One Group experiences inappropriate, threatening, hostile or offensive behaviour from person(s) at the event(s). In such circumstances, any fees or deposits paid will be non-refundable.

19. Limitation of Liability

You the client(s) including any family, friends, affiliates or other persons associated with the client(s) agree to release and hold harmless Cory Small Photographer and its subsidiaries, affiliates, advertising and promotion agencies, partners, representatives, agents, successors, assigns, employees, officers, and directors from any liability, illness, injury, death, loss, litigation, claim, or damage that may occur, directly or indirectly, whether caused by negligence or not, from:

a) such entrant’s participation before, during or after any photographic session and/or his/her acceptance, possession, use, or misuse of any props, products or any portion thereof.

b) technical failures of any kind, including but not limited to the malfunction of any computer, cable, network, hardware, or software, or other mechanical equipment.

c) the unavailability or inaccessibility of any transmissions, telephone, or Internet service.

d) unauthorised human intervention before, during or after any part of any session.

e) electronic or human error during any of the administration process.

20. Privacy

Information submitted by any client(s) is subject to the Privacy Policy stated on the Marketing One Group website. To read the Privacy Policy click this link, Privacy Policy.

21. Agreement Governance

This Agreement incorporates the entire understanding of the parties. Any modifications of this Agreement must be in writing and signed. Any waiver of a breach or default hereunder shall not be deemed a waiver of a subsequent breach or default of either the same provision or any other provision of this Agreement. This Agreement shall be governed by the Australian Consumer Laws, the Commonwealth Consolidated Acts of Australia, the QLD Fair Trading Act 1989 and the Australian Copyright Council

If any provision of these agreements are amended or held to be invalid or unenforceable under the law, the validity of this agreement as a whole shall not be affected, and the other provisions of the agreement shall remain in full force and effect.