Terms & Conditions

1.      Appointment 

1.1    We are appointed by you from the Start Date for the Term to perform the Services.

2.      Quote

2.1    Our Quote details the Services, the Fees and any other terms applicable to the provision of the Services.

2.2    We will not be bound by any terms or conditions expressed in orders or acceptances generated by you except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by Us.

2.3    If you request or We consider there to be a variation of the Services, then We may (but are not obliged to) notify you in writing of the variation, the price variation, associated delays and any other information We consider is relevant to the variation.

2.4    We are not obliged to commence any supply associated with any variation identified in accordance with clause 2.3 unless and until you acknowledge and accept in writing the variations contained in that notice. The notice may be given by email.

3.      Provision of Information and Assistance

3.1    You agree to provide Us with all necessary cooperation to enable Us to provide the Services.

3.2    You acknowledge that our ability to provide the Services is dependent on Us having access to (and continuing to receive) complete, accurate, up to date and timely documentation and information.

3.3    You agree that if any documentation or information supplied to Us is incomplete, inaccurate or its provision is unreasonably delayed, We will not be responsible for any delays or lability arising as a result and will be entitled to charge you in respect of any resulting additional work at an hourly rate or such other fee as agreed between the parties.

3.4    You acknowledge and agree that if the Services are cancelled within 48 hours of the scheduled time and date, We will retain the initial payment of 50% (or what’s listed on the quote) of the Fees unless the Services are rescheduled within 1 month.

4.      Payment and Price

4.1    We will issue you an invoice for the Fee and payment of 30% (or what’s listed on the quote) of the Fees is required before We will commence the Services. We will issue an invoice at the completion of each stage of work as specified in the Quote. The full Fee is payable before the photographs will be released.

4.2    If any invoice is not paid by the required date, We may charge interest at the then applicable rate pursuant to rule 36.7 of the Uniform Civil Procedure Rules 2005 (NSW). If any invoice remains unpaid for longer than 7 days from the date of the invoice, We may either suspend the provision of Services until payment is received or terminate this Agreement until payment is received. A failure by Us to exercise any remedy referred to above does not prevent Us from doing so with respect to any future unpaid invoice.

4.3    Unless stated otherwise Our Fees exclude GST. You agree to pay any GST imposed on Us now or in the future in relation to this Agreement. Where GST is payable on any taxable supply made under this Agreement, You agree the Fees payable for the supply will be increased by any amount equivalent to the GST payable by Us in respect of that supply.

4.4    The Fee includes re-touching and editing of the number of photos specified in the Quote. Additional re-touching and editing can be completed at an additional charge per image.

5.      Legal Disputes and Limitation of Liability

5.1    Our aggregate liability to you for any Loss arising out of or in connection with:

(a)  Any act, error, negligence, misrepresentation or omission concerning or arising out of all of the Services provided under this Agreement (including any pre contractual statement, representation or warranty as to the quality or fitness of the Services or as to our ability to perform the Services);

(b) Any breach of the Agreement or breach of duty of any kind owed in connection with the provision of the Services;

will be limited to and will not in any circumstances exceed the total Fees paid by you under this Agreement. This limitation applies to the aggregate Loss suffered or incurred by you in respect of all Services provided under all Quotes issued to you under this Agreement.

5.2    In no event will We be liable for any loss of profit, revenues, anticipated savings, business or investment opportunities, internal management costs or any other indirect or consequential loss. For the avoidance of doubt, multiple claims arising out of (or based on) the same act, error or omission, or series of continuous, or repeated acts, errors or omissions will be considered a single loss.

5.3    The limitation on liability in clause 5.1 does not apply to any liability which arises solely and directly from Our fraud or dishonesty.

5.4    Nothing in this Agreement is intended to exclude or restrict any liability that cannot be excluded or restricted by law.

6.      Confidentiality

6.1    A party receiving Confidential Information (“receiving party”) which is provided by or on behalf of the other party (“disclosing party”) must not deal with the disclosing party’s Confidential Information in any way that might prejudice its confidentiality.

6.2    The parties acknowledge that information resulting from Our activities pursuant to this Agreement will also be regarded as Confidential Information.

6.3    The receiving party’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by:

(a) the Company, in the case of Confidential Information pertaining to the Company’s business; and

(b) the Company’s client, in the case of Confidential Information pertaining to the business of any of the Company’s clients.

6.4    At the end of the Term, or when earlier directed by the disclosing party:

(a) all Confidential Information must be returned to the disclosing party, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the receiving party makes; and

(b) the receiving party will must erase and destroy any copies of any software containing or comprising the Confidential Information in the receiving party’s possession or under the receiving party’s control or that may have been loaded onto a computer possessed or controlled by the receiving party.

6.5    The Confidential Information does not include information which:

(a) is generally available in the public domain otherwise than as a result of a breach of this clause by the receiving party; or

(b) was known by the receiving party prior to the disclosing party disclosing the information to the receiving party.

6.6    The receiving party agrees to indemnify the disclosing party fully against all liabilities, costs and expenses which the disclosing party may incur as a direct result of any breach of this clause by the receiving party.

6.7    The receiving party acknowledges that damages may be an inadequate remedy for breach of this clause and that the disclosing party may obtain injunctive relief against the receiving party for any breach of this clause.

6.8    The obligations accepted by the receiving party under this clause survive termination or expiry of this Agreement.

 7.      Intellectual Property and Use of Photography

7.1    You acknowledge that We will own all Intellectual Property Rights subsisting in the Photographs. To the extent that any Intellectual Property Rights in respect of the Photographs vests in you, you assign all such Intellectual Property Rights to Us with such assignment effective immediately upon the relevant Intellectual Property Rights vesting in you.

7.2    Any pre-existing Intellectual Property Rights owned by Us before the commencement of this Agreement, will remain vested in Us.

7.3    Any pre-existing Intellectual Property Rights owned by you before the commencement of this Agreement, will remain vested in you.

7.4    We agree to grant you a non-exclusive, transferable, royalty free licence (“IP Licence”) to use and reproduce the Intellectual Property Rights subsisting in the Photographs for purpose of using the photographs on website, promotional material no larger than A2 size and any social media accounts owned by You. We kindly request that, where possible, you credit and tag Myf Garven Creative on social media, website and promotional material.

7.5    You agree that the IP Licence does not extend to use of the photographs:

(a)        in print, online or visual media; or

(b)       by third parties, for example, suppliers or customers that may be featured in the Photographs.

If the Photographs are used in a way which breaches this clause, an additional licensing fee will be imposed.

7.6    We acknowledge that you will retain ownership of Intellectual Property Rights subsisting in any Client Material. You grant Us a non-exclusive licence to use and reproduce the Client Material to the extent necessary for Us to provide the Services.

 8.      Force majeure

8.1    Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.

8.2    The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

8.3    If such circumstances continue for a continuous period of more than 3 months, either Party may terminate this agreement by written notice to the other Party.

9.     Termination

9.1    We may terminate this Agreement by notice in writing to you, if you:

a)   fail to observe any term of this Agreement;

b)  fail to rectify a breach, to Our satisfaction, following the expiration of 7 days’ notice of the breach being given in writing by Us to you;

c)   enter into a deed of arrangement or an order is made for it to be wound up;

d)  have an administrator, receiver or receiver/manager or a liquidator appointed to the Client pursuant to the Corporations Act 2001 (Cth);

e)   would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth); or

f)    have an administrator, receiver or executor is appointed to the Client pursuant to the Bankruptcy Act 1966 (Cth).

9.2    Notwithstanding any other provision of this Agreement, We may terminate this Agreement for any reason by providing you with 7 days’ notice.

9.3    If this Agreement is terminated, We will be entitled to payment for all Services carried out up to the date of termination.

10.          Applicable Law

10.1 The parties expressly agree that this Agreement will be governed by and interpreted in accordance with the laws of the State of New South Wales.  

11.          Client’s Warranties

11.1 The Client (and each director and office bearer if the Client is a company) separately warrants that:

(a) In the case of a natural person, he/she has never been a bankrupt or entered into a deed of arrangement or compromise or any other arrangement under Part X of the Bankruptcy Act or otherwise assigned his/her assets for the benefit of creditors.

(b) It has never been under external administration or subject to the appointment of an external receiver or controller or entered into a deed of company arrangement and that it is solvent and able to pay its debts as and when they fall due.

(c)  They are not executing this Agreement as a result of or by reason of or in reliance upon any promise, representation, statement or information of any kind whatever given or offered to them by or on behalf of Us whether in answer to an enquiry or otherwise.

(d) Prior to the Start Date, they have made their own independent enquiries and satisfied themselves as to the fitness for purpose of the services and, to the extent permitted by law, We makes no warranty, promise or representation in relation to the services, either expressly or impliedly and any warranties, terms and conditions in relation to the fitness of the Services for any purpose, whether implied by use, statute or otherwise is, to the extent permitted by law, hereby excluded.

12.           We Rely on the Client’s Warranties

12.1 In entering into this Agreement, we rely upon the warranties provided above and upon any information supplied by the Client.

12.2 We rely upon the representation that the person signing this Agreement has authority to execute it on behalf of the Client described in the Schedule.

 13.          Definitions

In these terms and conditions, the following terms have the meanings indicated:

a)   Agreement means the agreement made between you and Us as set out in these Terms and Conditions together with the Quote.

b)  Confidential Information includes any information marked as confidential and any information received or developed by a party, which is not publicly available and relates to processes, equipment and techniques used by the disclosing party in the course of the disclosing party’s business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.

c)   Client Material means any material regardless of form, provided or made available to Us by you in order for Us to provide the Services.

d)  Photographs means all photographs taken, developed or created by Us as a result of the provision of the Services.

e)   Fee means the fees for the Services set out in the Quote.

f)    Intellectual Property Rights means copyright, trademark, design, patent, semiconductor or circuit layout rights and any other rights whether or not they are registered or registrable, relevant to, among other things, the textual, graphical, audio and other information, content, data or material used by Us in respect to this Agreement.

g)  Loss means any and all loss (including pure financial loss), injury, liability, damage, compensation, claim, demand, expense, interest or cost, including reasonable legal fees, whether arising in tor, contract or otherwise (including costs awarded or incurred) of any kind.

h)   Services means the services to be provided by Us in accordance with a Quote.

i)    Start Date means the date specified in the Quote.

j)    Term means the term specified in the Quote.