Swipe Photography terms and conditions of service
The Customer wishes to engage Swipe Photography to take and provide photographs of the Customer for his/her social media and/or dating website accounts.
Swipe Photography provides the services as independent contractor and the Customer is willing to appoint Swipe Photography to provide the services, all in accordance with the provisions of this agreement.
1 Definitions and interpretation
In this agreement unless the context indicates otherwise, the following words have the following meanings.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Customer means the person making the booking for the Services.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Losses mean all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means Swipe Photography and the Customer, and Party means either one of them.
Photograph/Image Fee means the price payable by the Customer in addition to the Shoot Fee for photographs/images selected and purchased by the Customer as set out in the Swipe Photography Price List as amended from time to time.
Services mean shooting, editing, and delivering photograph/image portraits of the Customer for any personal use including for use on the Customers social media and dating accounts.
Shoot Fee means the price payable by the Customer for the Services set out in the Swipe Photography Price List as amended from time to time.
Swipe Photography means Swipe Photography (ABN 79267629547).
Swipe Photography's Personnel means any person or persons that Swipe Photography
designates to perform the Services on Swipe Photography's behalf.
Swipe Photography Price List means the price list appearing on the Swipe Photography website as amended from time to time.
In this agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
(e) reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g) the headings to the clauses and schedules of this agreement are not to affect the interpretation;
(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
(i) the word "including" (and related forms including "includes") means "including without limitation".
(a) Swipe Photography will provide the Services to the Customer in consideration for the Customer paying the Shoot Fee and the Photograph/Image Fee to Swipe Photography, subject to the provisions of this agreement.
(b) Swipe Photography and the Customer will agree the date and time for the performance of the Services subject to the availability of Swipe Photography's staff and/or agents.
(c) The Services will be performed by the employees or agents that Swipe Photography may choose as most appropriate to carry out the Services.
Swipe Photography will provide the Services in such location/s as Swipe Photography considers appropriate.
4.1 Payment of Fees
(a) In consideration of the provision of the Services in accordance with this agreement, the Customer will pay Swipe Photography the Shoot Fee and if applicable the Photograph/Image Fee.
(b) The Shoot Fee and the Photograph/Image Fee are inclusive of any GST that may be charged by Swipe Photography to the Customer.
(c) Payment to Swipe Photography will be made in a form acceptable to Swipe Photography, including by credit card or Pay Pal off Swipe Photography’s website, or such other payment method as notified by Swipe Photography in writing.
(a) Payment of the Shoot Fee in full will be made by the Customer to Swipe Photography upon making a booking with Swipe Photography for the Services.
(b) Swipe Photography will provide the Customer with a tax invoice in accordance with the GST Law in relation to fees payable under this clause. When making a payment, the Customer must quote relevant reference numbers and the invoice number.
4.3 Cancellation or postponement of a shoot
(a) Where a Customer fails to make full payment of the Shoot Fee or cancels or postpones a booking for the Customers shoot less than (48) forty eight hours prior to the date and time booked for the shoot, the Shoot Fee will be non-refundable and will be retained as a payment to Swipe Photography as a reasonable pre estimation of its loss and damage.
(b) If the same shoot is postponed for a later date a further Shoot Fee will be payable in full prior to any rebooking.
5 Customer's obligations
(a) During the preparation for and performance of the Services the Customer will:
(i) co-operate with Swipe Photography as Swipe Photography reasonably requires;
(ii) provide the information that Swipe Photography reasonably requires;
(b) The Customer will not charge for Swipe Photography's use of any facilities made available by the Customer for the provision of the Services.
6 No partnership or employment relationship
(a) Nothing in this agreement constitutes the relationship of employer and employee between the Customer and Swipe Photography or between the Customer and Swipe Photography's Personnel.
(b) It is the express intention of the Parties that any such relationships are denied.
7 Use of subcontractors
(a) Swipe Photography is permitted to use other persons to provide some or all of the Services.
(b) Swipe Photography is responsible for the work of any of Swipe Photography's Personnel
8 Disclosure and ownership of intellectual property
(a) Any intellectual property rights capable of protection arising from or in relation to the Services are and remain the sole and exclusive property of Swipe Photography or its nominees.
(b) The Customer specifically acknowledges that Swipe Photography is the author of the photographs/images arising from and in relation to the provision of the Services and the first and sole owner of all copyright of those photographs/ images. All photographs/images and copyright remain the exclusive property of Swipe Photography without limitation.
(c) The Customer understands and agrees that the Customer is not buying the photographs/ images arising from and in relation to the provision of the Services but is paying only for a licence to use the photographs/ images. The term of licence begins from the date Swipe Photography receives full payment of the Photograph/Image Fee.
(d) Copyright metadata contained within any digital file provided by Swipe Photography to the Customer may not be altered or removed without the express written consent of Swipe Photography.
(e) Unless otherwise stated Swipe Photography retains the right to use any photographs/images arising from and in relation to the provision of the Services for self-promotion purposes, provided that any such use is lawful and without harm to the Customer.
(f) While Swipe Photography may choose to archive the photographs/images, it is the Customers responsibility to properly store and archive the photographs/images. Swipe Photography does not guarantee the availability of any photographs/images beyond the date of first delivery to the Customer.
(a) Subject to full payment of the Shoot Fee, Swipe Photography will make the photographs/images taken in the performance of the Services available to the Customer within 7 (seven) days of completion of the shoot so that the Customer can select which photographs/images the Customer wishes to purchase.
(b) Swipe Photography will make the following number of photographs/images taken in the performance of the Services available to the Customer so that the Customer can select
which photographs/images the Customer wishes to purchase:
(i) No more than 45 photographs/images for a (3) three look shoot. A (3) three look shoot is a 1.5 hour shoot on the date and time booked - in (3) three different outfits of clothing (clothing to be selected and provided by the Customer) at up to (3) three different locations within close proximity - such location/s to be selected by Swipe Photography; or
(ii) No more than 60 photographs/images for a (4) four look shoot. A (4) four look shoot is a 2 hour shoot on the date and time booked - in (4) four different outfits of clothing (clothing to be selected and provided by the Customer) at up to (4) four different locations within close proximity - such location/s to be selected by Swipe Photography.
(c) Swipe Photography will give access to the photographs/images to the Customer for viewing and selection by any means it deems appropriate but in most cases this will be by uploading the images onto www.Shoot proof.com which the Customer will be able to access, subject to full payment of the Shoot Fee having been made.
(d) Access to enable selection of the photographs/images to be purchased will be given to the Customer for a period of no less than 14 days.
(e) Photographs/images selected by the Customer for purchase will be delivered to the Customer by email in digital form within 7 days after payment of the full Photograph/Image Fee.
(f) The Customer will notify Swipe Photography of the Customers email address at the time of payment of the Shoot Fee.
(g) Swipe Photography is committed to providing high quality services. Unless otherwise specified in writing, Swipe Photography may deliver, and the Customer agrees to accept, the photographs/images encoded in an industry standard data format that Swipe Photography may select, at a resolution that Swipe Photography determines will be suitable to the reproduction technology and uses for which the photographs are licenced.
(h) In no event will Swipe Photography be liable for poor reproduction quality, delays, losses, expenses, or consequential damage resulting directly or indirectly from defects or errors in digital files or their use.
10 Warranties, liability and indemnities 10.1 Warranties
(a) Swipe Photography warrants that it will use reasonable care and skill in performing the Services to the standard generally accepted within the industry, sector or profession in which Swipe Photography operates for the type of services provided by Swipe Photography.
(b) If a reshoot is required for reasons beyond the control of Swipe Photography, including but not limited to, weather conditions, acts of God or the fault of a third party, Swipe Photography will not charge an additional Shoot Fee.
(c) Provided Swipe Photography has executed the Services in a competent manner, the Customer agrees to accept the Services whether or not the Customer uses any of the photographs/images.
10.2 No warranties in relation to completion
Swipe Photography provides no warranty that any result or objective can or will be achieved or attained at all in relation to the Services.
10.3 Limitation on liability
(a) Except in the case of death or personal injury caused by Swipe Photography's negligence, the liability of Swipe Photography and Swipe Photography's Personnel and any other Swipe Photography contractors and representatives under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Shoot Fee paid by the Customer to Swipe Photography under this agreement.
(b) Swipe Photography and Swipe Photography's Personnel and any other Swipe Photography contractors and representatives is not liable to the Customer in contract, tort, negligence, breach of statutory duty or otherwise for any Losses, Claims, damage, costs or expenses of any nature whatsoever incurred or suffered by that the Customer of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.
(c) The Customer will indemnify, defend and hold harmless, Swipe Photography and Swipe Photography's Personnel and any other Swipe Photography contractors and representatives, against any and all claims, liabilities, damages, Losses, Claims, costs and expenses, including reasonable legal fees and expenses, arising from the Customer’s use of the photographs delivered to the Customer as part of the Services.
(d) The Customer is aware the optical, magnetic, electronic and other media for the storing digital data are inherently unstable. The Customer hereby releases Swipe Photography and Swipe Photography's Personnel and any other Swipe Photography contractors and representatives, from any liability for any claims, damages or costs arising from any media supplied by Swipe Photography which may become unusable.
10.4 No reliance
Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
(a) Swipe Photography may terminate this agreement by notice in writing to the Customer if the Customer fails to observe any fundamental term of this agreement.
12.1 Force majeure
(a) 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.
(b) 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.
This agreement may only be amended in writing signed by duly authorised representatives of the Parties.
(a) The Customer may not assign delegate, subcontract or otherwise transfer any or all his/her rights and obligations under this agreement without the prior written agreement of Swipe Photography.
(b) Swipe Photography may assign and transfer all of its rights and obligations under this agreement to any person to which it transfers or it business, provided that the assignee undertakes in writing to the Customer to be bound by the obligations of the assignor under this agreement.
12.4 Entire agreement
(a) This agreement contains the whole agreement between the Parties in respect of the subject matter of the agreement.
(b) The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.
(a) No failure or delay by Swipe Photography in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
(b) The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
12.6 Agency, partnership etc.
(a) This agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.
(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
12.7 Further assurance
The Customer must do all things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this agreement.
A notice or other communication connected with this agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre- paid post to the addressee, or by email to the addressee.
12.10 Law and jurisdiction
This agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Victoria Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.
13 Acceptance of the terms of this agreement
The Customer will be deemed to have accepted the terms of this agreement upon clicking the phrase “I agree” on a softcopy version of these terms and conditions on Swipe Photography’s website or by making a booking with Swipe Photography for the Services.