TERMS AND CONDITIONS
1. Content of this Agreement
The parties acknowledge that the content of their agreement in relation to STREET SMITH PTY LTD’s provision of Services to the Client incorporates:
a) any detailed Brief annexed to this Agreement; and
b) the terms as set out via quote and below, collectively “this Agreement”.
2. Engagement and Services
The Client agrees to engage STREET SMITH PTY LTD and STREET SMITH PTY LTD agrees to accept the Client’s engagement to:
a) provide the Services to the Client; and
b) upon receipt of full payment of the Fees and the Expenses, grant to the Client the License for the Term and for the Uses in the Territory as agreed in writing.
3. Variations to the Schedule
3.1 Any changes to the Services must be agreed by the parties in writing, including by email. Neither party may vary the Services of the engagement unless or until the parties have agreed to do so in writing.
3.2 Should the Client request a change to the Shoot Date or Shoot Location, STREET SMITH PTY LTD will endeavour to accommodate the Client’s request. If accommodating the requested change results in additional Expenses for STREET SMITH PTY LTD (for example additional travel expenses), the Client will be liable to reimburse STREET SMITH PTY LTD for those additional Expenses.
3.3 Should the Client wish to extend the License, Uses, Term or Territory, the parties will negotiate in good faith and any variation to this Agreement must be recorded in writing.
4. Failure to Attend and Cancellation
4.1. Should the Client fail to attend the Shoot, without providing adequate notice to STREET SMITH PTY LTD or negotiating an agreed date to reschedule, the Client will be liable to pay the Fees and Expenses in full despite the Services not being performed.
4.2. Should the Client cancel the Shoot by giving less than 2 business days or 48 hours notice the Cancellation Fee is payable by the Client and any Deposit already paid to STREET SMITH PTY LTD will not be refunded.
5. Fees
In payment for the Services, the Client will pay to STREET SMITH PTY LTD the Fees (plus GST if applicable).
6. Expenses
The Client authorises STREET SMITH PTY LTD to incur and agrees to reimburse STREET SMITH PTY LTD for:
6.1. STREET SMITH PTY LTD’s anticipated Expenses in relation to the engagement as specified in the invoice and
6.2. Any other additional and reasonable expenses incurred by STREET SMITH PTY LTD in relation to the engagement Additional Expenses greater than $100 must be approved by the Client before being incurred by STREET SMITH PTY LTD.
7. Payment Terms
7.1. STREET SMITH PTY LTD will invoice the Client for the Fees and Expenses in line with the provisions of the quote.
7.2. All invoices are payable within 30 days of invoice date. Payment is to be made by electronic funds transfer into the Nominated Account.
7.3. If the Client fails to pay the Fees and Expenses in accordance with this Agreement and any invoice remains overdue after 30 days from the due date, STREET SMITH PTY LTD reserves the right to charge interest at the rate of 2.5% interest per day, at that date on all outstanding amounts until paid in full.
7.4. If any amounts remain outstanding for more than 60d ays, STREET SMITH PTY LTD may refer the matter to a debt collection agency or solicitor and the Client will be liable to pay any costs STREET SMITH PTY LTD incurs or becomes liable to pay for the collection of such unpaid amounts, including but not limited to debt collection fees, charges and commissions and legal fees and costs on a full indemnity basis.
Photography Contract
8. Use of Third Parties
8.1. The Client agrees that STREET SMITH PTY LTD will use a variety of photographers, assistants and extended team members to assist STREET SMITH PTY LTD in delivering the Services to the Client.
9. Intellectual Property
9.1. All Intellectual Property created by STREET SMITH PTY LTD or the Engaged Creative booked via our service in the course of this engagement (including but not limited to the concepts, proposals, words, photographs, digital or electronic material, negatives (and the digital equivalents) and prints of or relating to the creative outcomes, collectively the “Work” or “Works”) will be the exclusive and sole property of STREET SMITH PTY LTD or the Engaged Creative. Any derivatives of the Works will also be the exclusive and sole property of STREET SMITH PTY LTD or the Engaged Creative, regardless of whether such derivatives are created by STREET SMITH PTY LTD, the Engaged Creative or the Client, and the Client hereby agrees to sign all documents and do all things necessary to assign all Intellectual Property Rights in such derivative works to STREET SMITH PTY LTD or the Engaged Creative.
10. Rights in the Works granted to the Client
10.1. In consideration of the full payment of the Fees and Expenses by the Client, STREET SMITH PTY LTD or the Engaged Creative grants to the Client the Licence to use the Works for the Uses during the Term and throughout the Territory. The Licence granted is not effective until both parties have agreed in writing to and STREET SMITH PTY LTD has received the Client’s payment of Fees and Expenses in full and in cleared funds. 10.2. STREET SMITH PTY LTD retains all moral rights attached to the Works.
10.3. The Client does not have the right to edit, change, add to, take from, alter or otherwise amend the Works without the prior consent of STREET SMITH PTY LTD.
10.4. Notwithstanding the Licence granted under this Agreement, STREET SMITH PTY LTD or the Engaged Creative reserves the right to use the Works during the Term and within the Territory for the purposes of promoting and marketing STREET SMITH PTY LTD or the Engaged Creative’s business,
10.5. STREET SMITH PTY LTD expressly reserves all other rights subsisting in the Works not specifically granted in this Agreement.
11. Attribution Credits
If Credits are specified in writing via email, quote or invoice, then the Client must cause an attribution to be published on or near each Work on each occasion it is published or used by the Client as specified.
12. Work Standards and No Warranty
12.1. STREET SMITH PTY LTD will deliver the Services in a professional manner, in good faith and with all requisite care and skill, however STREET SMITH PTY LTD does not make any warranty or guarantee as to the Client’s satisfaction with the Works. Every reasonable effort will be made by STREET SMITH PTY LTD to produce the work requested by the Client, but no specific outcome is guaranteed. Any photograph request list supplied by the Client will be used by STREET SMITH PTY LTD for organisational purposes only. Any indications given by STREET SMITH PTY LTD prior to the engagement are examples only, based on experience. These must not be relied on to predict future results. The Client warrants that they have not relied on any warranty, guarantee or representation given by STREET SMITH PTY LTD in entering into this Agreement.
12.2. The Client acknowledges that STREET SMITH PTY LTD is not liable for any impact on the quality of the Works as a result of circumstances beyond STREET SMITH PTY LTD’s control, such as inclement weather conditions or the unruly behaviour of persons being photographed.
13. Delivery and release
13.1. STREET SMITH PTY LTD retains the right of discretion in selecting the Works released to the Client. Images determined by STREET SMITH PTY LTD to be sub-standard or duplicated will be deleted. STREET SMITH PTY LTD will use professional judgment and sole discretion to select the Photographs for release and such selection is the only material that will be made available to the Client.
13.2.The Works selected by STREET SMITH PTY LTD will be made available to the Client within the timeframe agreed in writing.
14. Storage and archiving of Photographs
Unless otherwise agreed in writing, STREET SMITH PTY LTD is not responsible for the storage or archiving the Works on the Client’s behalf. It is the Client’s sole responsibility to ensure the safe and secure storage of Works once they have been provided to the Client by STREET SMITH PTY LTD. STREET SMITH PTY LTD will be under no obligation to reproduce or replace Works lost due to the Client’s failure to do so.
15. Client Responsibilities, Warranty and Indemnity
15.1.It is the Client’s responsibility to provide the items set out in the brief.
15.2.The Client warrants to STREET SMITH PTY LTD that:
a) It has capacity to enter into this Agreement; and
b) It has obtained all appropriate releases and clearances in relation to the subject matter; and
c) It will only use the Works as permitted under this Agreement.
15.3. The Client agrees to indemnify, hold harmless and defend STREET SMITH PTY LTD against any and all third-party claims, losses, injuries, damage or liabilities (including reasonable legal costs) arising out of or in connection to a breach of the Client warranties given above.
15.4. The Client further agrees to indemnify STREET SMITH PTY LTD for the costs of any repairs or replacements (at market value) to STREET SMITH PTY LTD’s equipment caused by the Client or a person under the Client’s control.
16. Non-Disparagement
16.1.The Client acknowledges that STREET SMITH PTY LTD has established a valuable reputation and goodwill in Australia in the area of photographic services. Subject to law and the rights of the Client in connection with the enforcement of this Agreement, the Client may not at any time:
a) disparage, permit or authorise the disparagement of STREET SMITH PTY LTD, any of its related entities or any director, officer, employee, agent, consultant or adviser of STREET SMITH PTY LTD or of its related entities; or
b) otherwise make, permit or authorise the making of any statement in anyway relating to or connected with any matters in dispute which is calculated or is reasonably likely to cause damage to STREET SMITH PTY LTD, any of its related entities or any director, officer, employee, agent, consultant or adviser of STREET SMITH PTY LTD or its related entities (including damage to their respective reputations).
17. Promotion
The Client consents to STREET SMITH PTY LTD using the Client’s name, trade marks and general details of the engagement to promote its business.
18. Limitation of Liability and Indemnity
18.1.Nothing in this Agreement is intended to exclude any right or guarantee to which the Client is entitled under the Australian Consumer Law.
18.2.Where the Services fall within the scope of the Australian Consumer Law, STREET SMITH PTY LTD’s liability to the Client is limited to the fullest extent permissible by law, including by limiting liability under section 64A of the Australian Consumer Law to providing the services again or the cost of providing the services again (at STREET SMITH PTY LTD’s option). STREET SMITH PTY LTD specifically excludes liability for negligence. To the maximum extent permissible by law, STREET SMITH PTY LTD excludes liability for consequential loss or damage, including loss of business profits or repetitional damage.
18.3.Where the scope of the Services fall outside the scope of the Australian Consumer Law, STREET SMITH PTY LTD excludes all liability to the Client (including for negligence and consequential loss or damage, including loss of business profits or reputational damage) and the Client hereby waives, releases and discharges, on a continuing basis, all claims they have or may have against STREET SMITH PTY LTD relating to the provision of the Services, however arising.
19. Electronic Transmission Risks
19.1.The parties will communicate electronically with one another for the purpose of this Agreement using email and data storage devices, including cloud-based storage facilities such as Dropbox, Google Drive or OneDrive.
19.2.The parties acknowledge and agree there are some delivery risks in using email and other electronic communication and document storage and sharing methods and that computer viruses and similar damaging items can be transmitted through these methods.
19.3.The parties undertake to use appropriate electronic and information technology protections and protocols (such as password protection and virus-scanning software) to reduce these risks.
19.4.The parties acknowledge that it is not possible to eliminate the risk of introducing viruses altogether, accept the risk of interception of emails by third parties or of non-receipt or delayed receipt of emails and hereby release one another from all claims, losses, expenses and liabilities caused by any of the risks referred to above and arising directly or indirectly out of that communication.
20. Termination
20.1.Either party may terminate this Agreement:
a) on 14 days' written notice to the other party;
b) by agreement of the parties; or
c) as otherwise set out in this Agreement.
20.2. STREET SMITH PTY LTD may terminate this Agreement:
a) immediately on written notice to the Client, if the Client engages in conduct which STREET SMITH PTY LTD reasonably considers to be illegal, immoral, unfair or deceptive, or which may otherwise jeopardise STREET SMITH PTY LTD’s name, reputation or business;
b) on expiry of notice given, if the Client breaches a term of this Agreement and fails to remedy the breach within 14 days after having received notice in writing of the breach; or
c) immediately on written notice to the Client, if an Insolvency Event occurs in relation to the Client.
20.3. If termination is disputed, it will be dealt with in accordance with the dispute resolution provisions of this Agreement.
21. Consequences of Termination
21.1.If this Agreement is terminated, all rights and obligations accrued up to the date of the termination (including, in particular, the Client’s obligation to pay Fees and Expenses including the Cancellation Fee if applicable) are not affected.
21.2.Any and all rights in the Photographs that may have been transferred to the Client immediately revert to STREET SMITH PTY LTD.
21.3.This clause and any other clause which by its nature is intended to survive termination, will survive termination of this Agreement.
22. Force Majeure
22.1.STREET SMITH PTY LTD will not be liable to the Client for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control including, but not limited to, by fire, flood, other extreme weather event or natural disaster, riot, strike, act of war, terrorist attack, nuclear event, pandemic, epidemic, widespread contagion, quarantine restriction, critical infrastructure failure, severe disruption to virtual infrastructure, restriction or prohibition or any other action by any government or semi government authority, or major injury or illness of key personnel.
23. Dispute Resolution
23.1.If a dispute arises between the parties, the party claiming the dispute must not commence any court or arbitration proceedings (except where they seek urgent interlocutory relief), unless they have first complied with this clause.
23.2.The party claiming the dispute must first inform the other party in writing of the following:
a) the nature of the dispute;
b) the outcome they desire to resolve the dispute, and
c) the action they believe will settle the dispute.
23.3.On receipt of the notice by the other party, both parties will make every effort to resolve the dispute by mutual negotiation within 20 Business Days.
23.4.If the parties are unable to resolve the dispute in that time, the parties must agree on selection of a mediator (if the parties are unable to agree, they agree to request that the President of the Law Society of Victoria appoint a mediator) and will be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation (to be paid in advance). The parties must each pay their own costs associated with the mediation, which must be held in Melbourne, Australia, unless otherwise agreed in writing.
23.5.All communications made by the parties arising out of this dispute resolution clause are confidential and to the maximum extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
23.6.This clause survives termination of this Agreement.
24. Acceptance
The Client will be taken to have accepted the offer contained in this Agreement:
a) on receipt by STREET SMITH PTY LTD of the Deposit; or
b) on written acceptance of this Agreement (including via email); or
c) by agreeing electronically to the terms and conditions set out on the booking form. Whichever occurs first. STREET SMITH PTY LTD will not be under any obligation to commence delivery of the Services unless or until acceptance of this Agreement is provided by the Client in the form requested by STREET SMITH PTY LTD.
25. General
The following additional terms and conditions apply to this Agreement:
a) Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision.
b) The parties acknowledge that this Agreement is intended as an agreement for the provision of Services and creates the relationship of principal and contractor and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
c) This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this Agreement.
d) If anything in this Agreement is unenforceable, illegal or void, it is severed, and the rest of the Agreement remains in force.
e) Any waiver by any party to a breach of this Agreement will not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
f) Neither party will be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement where such failure is occasioned by causes beyond its reasonable control
including, but not limited to, by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities, theft, cyber theft or major injury or illness of key personnel.
g) Any amendment or variation to this Agreement (such as a change to the Services to be provided) is not effective unless it is agreed in writing by both parties, unless otherwise set out in this Agreement.
h) The law of Victoria governs this Agreement and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.
i) A notice required to be given to a party under this Agreement must be in writing and delivered to that party in one of the following ways: delivered personally; posted to their address, when it will be treated as having been received on the second Business Day after posting; or sent by email to their last-notified email address, when it will be treated as received when it enters the recipient’s information system or otherwise when the recipient confirms receipt, whichever occurs first.
26. Definitions
The terms in this clause have the following meanings, unless the context indicates otherwise:
a) Agreement means this agreement between STREET SMITH PTY LTD and the Client.
b) Credits means attribution credits.
c) Australian Consumer Law means the Competition and Consumer Act 2010 (Cth).
d) Business Day means a day on which banks are open for business in Melbourne, other than a Saturday, Sunday or public holiday.
e) Cancellation Fee means the cancellation fee specified in the quote.
f) Consumer Price Index means the percentage increase in price for fixed basket of goods and services purchased by the average household in 8 capital cities around Australia for the year to the latest quarter, as determined by the Australian Bureau of Statistics.
g) Deposit means the non-refundable deposit required to secure the booking as set out in the booking form.
h) Expenses means the expenses set out in writing and agreed upon.
i) Fees means the Fees set out in the quote or invoice provided
j) Insolvency Event includes any event which indicates that the party in question is unable to pay their debts as they fall due, including any of the following events:
becoming unable to pay debts as they fall due;
an act of bankruptcy;
enter into a composition or arrangement with creditors;
execution levied by creditors, debenture holders or trustees under a floating charge;
institution of any actions or proceedings, whether voluntary or compulsory, which has the object of or which may result in winding up (except for the purposes of reconstruction);
making of a winding up order; and
appointment of an official manager, receiver, receiver/manager, provisional liquidator or liquidator,
but does not include a transfer of ownership.
k) Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration, and all digital and electronic rights.
l) Nominated Account means the account maintained by STREET SMITH PTY LTD with the following details:
Account Name: STREET SMITH PTY LTD
BSB Number: 193 879
Account Number: 471 170 911
m) Photographs means the photographs that will be delivered to the Client by STREET SMITH PTY LTD as a result of the Shoot.
n) Services means the Services set out in the booking form, brief or other written communication.
o) Shoot means the photographic shoot to occur on the Shoot Date and at the Shoot Location.
p) Shoot Date means the date upon which the Shoot will occur as specified in the booking form, brief or other written communication.
q) Shoot Location means the location at which the Shoot will take place.
r) Term means the terms set out in this Agreement.
s) Territory means the territory set out in this Agreement.
27. Interpretation
In the interpretation of this Agreement:
a) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
c) Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement;
d) Grammatical forms of defined words or phrases have corresponding meanings;
e) Parties must perform their obligations on the dates and times fixed by reference to Melbourne, Australia;
f) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
g) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;
h) References to a party are intended to bind their executors, administrators and permitted transferees; and
i) Obligations under this Agreement affecting more than one party bind them jointly and each of them severally