POPLAP PHOTOGRAPHY SERVICES TERMS AND CONDITIONS
1. ACCEPTANCE OF TERMS
1.1 By requesting the services of Photographer, EVELENE BESTER, who operates as a sole proprietor under the name and style of POPLAP PHOTOGRAPHY (hereinafter referred to as “the Photographer”) you automatically accept these terms and conditions.
1.2 All contracts and transactions between the Photographer and the Clients who request her services, whether made verbally or in writing, are subject to these terms and conditions, which will be deemed to be incorporated into any contract between the Photographer and
all or any of her Clients.
2.1 The contract is between the Photographer and the Clients who retain the Photographer’s services by paying a retainer, which consists of the full contract price (50% of the contract price retainer for weddings) according to the particular packages offered by the Photographer, which is due and payable in full within 24 hours of booking the Photographer.
2.2 Any travel costs is not included and will be charged in addition to the package prices.
2.2 The Photographer reserves the right to charge interest on all overdue accounts at a rate according to the Prescribed Rate of Interest Act.
3.1 Upon receipt of the retainer fee (50% of the contract price for weddings and 100% of the contract price for all other events) the Photographer will confirm the date and time of the Clients’ wedding/event and will not make any other plans or accept any other Clients for said date and time. Therefore, should the Clients cancel the contract for any reason, the Photographer will have lost the potential earnings from the Clients’ wedding/event. For this reason the retainer fee will be not be refunded, it being the agreed cancellation fee for the loss suffered by the Photographer due to cancellation.
3.2 In the event that the Clients cancel the contract less than 2 weeks before the date of the wedding, the agreed cancellation fee for the loss of business due to cancellation will be 75% of the contract price plus travel expenses, which cancellation fee will be due and payable immediately upon cancellation, or the Clients have already paid the full contract price, the Photographer will refund the Clients 25% of the contract price in a reasonable period of time.
3.3 The notice of cancellation must be in writing even if a phone call was made to inform the Photographer of cancellation.
3.4 Should cancellation be due to the death of either the bride or the groom, the Photographer will refund all amounts received for the wedding (except travel expenses) in a reasonable period of time.
3.5 In the event of the Photographer being unable to photograph the wedding/event due to the Photographer’s illness or emergency, or due to any other cause beyond the Photographer’s control which prevents her from performing her services, the Photographer reserves the right to appoint another photographer to photograph the Clients’ wedding/event. If the situation should occur that a suitable replacement is not found, responsibility and liability
of the Photographer will be limited to the return of all payments received for the event/wedding.
4. COOLING-OFF PERIOD
If the Photographer’s services are requested 6 months or more from the date of the wedding/event, the Clients will have a cooling-off period of 5 calendar days (which includes Saturdays, Sundays and Public Holidays) from date of payment of the retainer fee, during which period the Clients may cancel their contract with the Photographer for any reason, and they will receive a refund of the retainer fee within 72 hours of written request for cancellation, without any penalty or question.
5.1 Should the Clients wish to change the date of their wedding/event, they agree to consult with the Photographer early as possible in order to ascertain whether the Photographer is available for the new date. The Photographer will do her best to accommodate the change and no extra fee will be charged if the Photographer is available for the new date. The Clients must confirm the request to the Photographer for the new date in writing.
5.2 If the Photographer is not available for the new date it will be deemed that the Clients cancelled the contract, and the retainer fee will be not be refunded, it being the agreed cancellation fee for the loss suffered by the Photographer due to cancellation. If less than 2 weeks before the date of the wedding/event, the agreed cancellation fee for the loss due to cancellation will be 75% of the contract price plus travel expenses, which cancellation fee will be due and payable immediately upon cancellation. or if the Clients have already paid the full contract price, the Photographer will refund the Clients 25% of the contract price in
a reasonable period of time.
6. IMPOSSIBILITY OF PERFORMANCE
Should the event/wedding not be able to take place on the scheduled date due to disease, emergency, accident, casualty, acts of God, fire, theft, natural disaster, war, civil unrest, strike, protest action, loadsheddng or any other act or circumstance beyond the control of the parties, the Photographer will retain all payments received.
7.1 The Clients indemnify and hold the Photographer harmless against all liability, claims and
expenses, including attorneys’ fees, arising from:
7.1.1 Clients’, and/or any third parties’ use of the Photographer’s material and/or any loss, damage or misuse of any Photographs supplied by the Photographer; 7.1.2 any loss or damage resulting from or related to the use of any equipment at the venue, and 7.1.3 any harm that may come to Clients during a photo session, granted that there is no fault on the part of the Photographer.
7.2 The Photographer will not be liable for any indirect or consequential damages and the amount of any and all claims against the Photographer will be limited to the contract price.
Should the Clients breach any of these terms and conditions the Photographer will then provide the Clients 10 days’ written notice to remedy the breach, failing which the Photographer will be entitled to cancel the contract and to retain all amounts paid, and institute claim for travel expenses and any remaining contract balance, which will be due and payable on the date of the wedding/event, being the agreed damages for the time the Photographer has already invested in preparing for the Clients’ wedding/event.
9. SEATING ARRANGEMENTS
9.1 To ensure that the wedding/event is not disrupted the Clients may elect to add the Photographer to the guest list. In order to enable the Photographer to properly prepare for the wedding/event, the Clients will provide the Photographer with written confirmation whether or not the Photographer is included on the wedding/event guest list at least 2 months before the date of the wedding/event.
9.2 Failure to notify the Photographer whether she is included on the guest list 2 months before the date of the wedding/event, will constitute a breach of this agreement. The Photographer will then provide the Clients with 10 days’ written notice to remedy this breach, failing which, the Photographer will be entitled to cancel the agreement, retain all amounts received and institute claim for travel costs and the full remaining contract balance, which is due and payable on the date of the wedding/event, being the agreed damages due to the Clients’ breach of the agreement.
9.3 Should the Clients choose not to include the Photographer on the guest list the Clients have to arrange for two extra seats to be made available at the venue of the wedding/event.
10.1 All photographs will be shot in digital format. The digital photos will be available approximately 2-4 weeks after the photo session and the Photographer will schedule a viewing with the Clients to select pictures for printing. If Clients arrive late for a scheduled viewing an additional release fee of R250.00 will be payable. Once the Clients have selected pictures for printing the photographs will be available in approximately 3 months.
10.2 The digital photos will be copied as JPEG-files onto a USB Drive to be provided by the Clients. No unedited photos will be made available.
10.3 Coverage will be scheduled different periods of time according to the particular package. The fee for each photographic coverage will depend on the package price, and includes digital processing of the camera RAW files and all density and colour corrected medium- resolution wedding images in JPEG format. If Clients arrive late, only the remaining time will be used to capture images. Additional hours of photography will be charged for separate and will be payable in cash to the Photographer prior to her exit at the end of the wedding/event.
10.3 The Photographer is not able to save or keep back-ups or copies of any photos for any length of time. Should the photos or images become lost, stolen, or destroyed for any reason while in the Clients’ possession, if the Photographer still has any copies, it will be made available to the Clients at an additional cost of 25% of the contract price.
10.4 The Photographer takes the utmost care with respect to exposure, processing and delivery of photographs. In the event that the images become lost, stolen destroyed, or damaged for any reason whilst in the possession of, POPLAP PHOTOGRAPHY, liability is limited to a refund of the retainer fee.
11. SCHEDULE OF EVENTS
11.1 Approximately 2 weeks before the date of the wedding/event, the Clients must finalize with the Photographer a schedule of hours, events and locations. The Clients will be responsible for designating a person to be an event guide, whose role will be to identify people/objects of whom/which specific photographs are desired, as well as to make certain that these subjects/objects are available when needed.
11.2 It is recommended that the Clients together with the designated event guide, develop a list of desired poses, locations, and subjects (family, friends, items etc.) and share this with the Photographer well before the date of the wedding/event.
11.3 The Photographer will not be held accountable for not capturing desired photographs if there is no one to assist in identifying or gathering people/items/locations for the photographs. If there is any failure to capture certain images that you have requested or that were discussed at the planning meeting, such omissions will not void this agreement nor be a breach of this agreement and will not cause any compensation to be payable to the Clients and the Photographer will not be liable for same.
12.1 The parties agree to positive cooperation and communication for the best possible result within the definition of this assignment. The Photographer is not responsible for key individuals’ failure to be present or to cooperate during photo sessions, neither for missed images due to details not revealed to the Photographer.
12.2 Since flashes from guests’ cameras may ruin shots taken by the Photographer the Clients acknowledge that they are responsible for notifying all of their guests that guest photography will be limited and not at the expense of the professional Photographer’s work.
12.3 The Clients will ensure that their guests have been informed to refrain from taking any pictures during four key photo sessions, namely the wedding couple, the bridal party, the walk down the isle, and the first dance.
12.4 The Photographer will not be held responsible for any ruined photographs due to guests’ (or any other) flashes; or any other ruined photographs due to circumstance beyond the Photographer’s control.
13. INTELLECTUAL PROPERTY
13.1 The Clients acknowledge that all work created under this agreement is the intellectual property of the Photographer who will retain the copyright to all the photographs, and that any copying, scanning, or reproducing of any of the images without prior written permission of from the Photographer, is strictly forbidden.
13.2 The Clients agree not to publish the photographs without prior written permission from the Photographer and may only post images marked for “web” or “Flickr”, “Twitter”, “Myspace”, ”Facebook” or any other social networking website.
13.3 The Clients also agree not to digitally manipulate the work for public viewing (wedding message board, social networking website or public photo galleries, filters etc.) and to include a photo credit of “photo by: the Photographer” or “#Photographer@poplapphotography” with each image posted.
13.4 Subject to clauses 13.1 to 13.4, the Clients will have unlimited personal use of the photographs at any time for no additional fee.
13.5 The Clients hereby give permission for the Photographer to use the work for publication, display, advertising promotion and other uses.
14.1 Clients agree that they will not disparage the Photographer or post any negative statements, reviews, comments or feedback about the Photographer or services provided by the Photographer to any third party whether verbally or in any written publication or online forum or message board, including but not limited to Facebook, Instagram and Twitter.
14.2 The parties agree that it is extremely difficult to ascertain the actual amount of damages caused by a failure to comply with this condition, therefore the parties agree that in the event that it is established that the Clients have failed to comply with this provision, liquidated damages in the amount of R50,000.00 (FIFTY THOUSAND RAND) will be payable to the Photographer within 3 months of written demand.
15. SOLE AND EXCLUSIVE MANDATE
It is understood that POPLAP PHOTOGRAPHY will act as the sole and exclusive photographer for the Clients at their event/wedding, and POPLAP PHOTOGRAPHY reserves the right to bring one assistant at her discretion.
16. WHOLE AGREEMENT
In the event of a dispute, neither party will be allowed to rely on any verbal representation, which is in conflict with these terms and conditions or which is not reduced to writing and signed by the Photographer and Clients.
Any amendments or additions to this contract must be in writing and signed by all parties.
No indulgence which one party may grant to the other will be deemed to be a waiver of that party’s rights, or in any other way limit or alter or prejudice such party’s rights.
19. APPLICABLE LAW
This agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa.
The parties hereby irrevocably submit themselves to the jurisdiction of the Western Cape Division of the High Court of South Africa or Western Cape Division of the Magistrate’s Court.
If any provision of this agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination will not affect the validity or enforceability of any other part or provision of this agreement.