TERMS AND CONDITIONS
For the purpose of this agreement:
1.1 “Agreement” means these Terms and Conditions read with the Quotation;
1.2 “Client” means the entity named in the Quotation;
1.3 “MSP” means Michael Sheehan Photography and Videography;
1.4 ‘Photographs’ means all photographic material furnished by MSP, whether transparencies, negatives, prints or any other type of physical or electronic material.
1.5 “Quotation” means the quotation to which these terms and conditions are attached.
2.1 MSP agrees to provide the Photography Services (“the Services”) as set out in the Quotation.
2.2 The performance of the Services by MSP is dependent on the furnishing of a complete, accurate and timely brief by the Client.
2.3 The Client may not reject the Services on the basis of style or composition. In addition, the Client may not reject the Services on the basis of MSP’s interpretation of the brief unless such interpretation is a clear breach of the brief’s express terms.
2.4 MSP will not be responsible for obtaining any rights to the use of any third party intellectual property, such as copyright, trademarks or designs, that may be involved in the performance of the Services. The Client will be responsible for obtaining all rights needed and hereby indemnifies MSP and holds him harmless against any loss caused in any manner as a result of its failure to do so.
3 FIRST OWNERSHIP OF COPYRIGHT: 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 work(s) to be made in terms hereof and MSP will be the author of the work(s) and the owner of the copyright subsisting therein.
4 USAGE RIGHTS:
4.1 MSP grants the Client an exclusive, non-transferable, non-perpetual licence to use the Photographs in the context and for the period set out in the Quotation.
4.2 Where no specific context or period is set out, the licence is limited to base usage.
4.2.1 For Advertising and Commercial Photography, base usage means either for one year any two, or for two years any one of the following media: Press, Poster, Billboard, Point of Sale, Direct Mail, TV, Brochure, Packaging and Merchandising, in South Africa only.
4.2.2 For Editorial, Journalistic and Public Relations Photography base usage means one time use, in one publication, in South Africa only, for 24 hours or three months or whatever period commensurate with the frequency of the publication and the nature of the image.
4.3 The granting of licences for further usage is subject to payment of additional usage fees as recommended in the PPSA Price and Usage Guide.
5 USE: The licence will come into effect from the date of payment of the relevant invoice(s). No use may be made of the Photographs before payment in full of the relevant invoice(s) without MSP’s express permission. The Photographs may not be used in any way outside of the terms of the licence without the prior written permission of MSP.
6 ECONOMIC RIGHTS: MSP shall be entitled to an equitable remuneration for all uses of the work(s) created by him irrespective of whether he or another is the owner of the copyright therein.
7 OWNERSHIP OF_MATERIALS: Ownership of all Photographs remains the property of MSP. Where the usage rights have expired, the Photographs must be returned to MSP in good condition within 30 days.
8.1 The Client shall pay to MSP the fees and charges set out in the Quotation.
8.2 All such fees and charges must be paid within fourteen (14) calendar days from the date of the receipt of the invoice by the Client.
8.3 Without detracting from any other rights of MSP, any outstanding amounts not paid by due date shall attract interest at the then current prime interest rate plus 3%.
8.4 Where a booking is cancelled less than 48 hours prior to the engagement, a fee equal to 50% of the amount reflected in the Quotation will be charged.
9 RIGHT TO PROMOTE: MSP retains the right in all cases to use the Photographs in any way he deems fit for manner at any time and in any part of the world for the purposes of advertising or otherwise promoting his work. After expiry of the licence period, MSP shall be entitled to use the Photographs for any purposes.
10 CLIENT CONFIDENTIALITY: MSP will keep confidential and will not disclose to any third parties or make use of material or information communicated to him in confidence for the purposes of the photography, save as may be reasonably necessary to enable MSP to carry out the services
11 SUB-CONTRACTING: MSP may sub-contract the Photography Services to a third party of his discretion, provided that he remains ultimately responsible for the performance of such services.
12 EQUIPMENT FAILURE:
12.1 Where MSP is unable to perform the Services as a result of equipment failure that due to any action of the Client, the Client shall indemnify MSP and hold him harmless against any loss at all caused by such equipment failure. The Client shall compensate MSP for all reasonable expenses incurred by MSP in performing the Services.
12.2 Where MSP is unable to perform the Services as a result of equipment failure that is not due to any action of the Client, MSP will not levy the charges in the Quotation, but the Client shall not have any further recourse against MSP.
13 BREACH: Should either party to this Agreement commit a breach of any of the terms and conditions hereof, and remain in default for a period of seven (7) days after receipt by if of written notice from the other party calling for such breach to be remedied, provided that if such breach cannot be remedied within seven (7) days then the said period of seven (7) days will be extended for such further period as may be reasonably required in the circumstances to remedy the breach, the party delivering such notice will be entitled, without prejudice to any other rights it may have hereunder or in law, to terminate this Agreement by written notice to that effect given to the defaulting party.
14.1 These Terms and Conditions, together with the Quotation and any other attachments to it, make up the whole agreement between the Client and MSP and replace all other agreements or proposals between the parties on this subject.
14.2 If there is any conflict between the provisions on the Quotation and the provisions of these Terms and Conditions, the provisions on the Quotation will prevail.
14.3 No party will have any claim or right of action arising from any undertaking, representation or warranty not included in this Agreement.
14.4 If a party does not enforce any provision of this Agreement, it will not mean that provisions is waived or that the party’s right to enforce the provision at any time in the future is affected at all, nor will waiving a breach of a provision nullify the provision itself.
14.5 No agreement to vary, add to or cancel this Agreement will be of any force and effect unless is in writing and signed by the parties to this Agreement.
14.6 Any invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity of any other of its provisions.