Terms and Conditions of Trade
Please also see our FAQ page with specific Photography Services FAQ. These FAQ’s form part of these condition of Trade.
1. APPLICABILITY AND ACCEPTANCE OF THESE TERMS
1.1 These Terms of Trade (“Terms”) apply to each order that Orlando Sydney Photography of 78/156 Chalmers Street, Surry Hills, NSW 2010 (“Orlando Sydney”, “we” or “us”) accepts from a customer (“you” “your”) for the supply of products or services. For the purposes of these Terms, “products” are digital and print products and “services” refer to publications or services delivered in any medium, including those services to which the additional terms apply.
1.2 Your acceptance of products and services from us means that you accept these Terms. No variation by you of these Terms will be valid unless agreed by us in writing and signed by each party’s authorised representative.
1.3 We may make changes to these Terms from time to time to accommodate changes in law, business practice or the introduction of new products or services. If we do, we will not notify you in writing before those changes take effect. Your acceptance of further products and services and/or payment of further instalments due after the date we notify you of a change is deemed acceptance of those changes. If you do not want to accept the changes, you are entitled to terminate any ongoing subscription affected by written notice to us before the changes take effect.
1.4 For the purposes of these Terms:
(a) a reference to “writing” includes any method of representing words, figures or symbols in a permanent and visible form including online or in an electronic communication;
(b) a reference to “online” or to an “electronic communication” includes a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy, including by means of the Internet.
2. PRICES, CHARGES AND PAYMENT
2.1 You agree to pay in full the amount specified on any invoice rendered by us for products and services supplied to you within 7 days of the date of the invoice (unless we agree otherwise in writing).
2.1.1 If you fail to pay all monies due you will have invalidated your image use rights and must remove and delete all content until such time as full payments have been made. Each copyright violation carries a fee of $3600 ex gst per image per occurrence.
2.1.2 If payment is not made by the due date an overdue fee of the following will apply after 30 days; Min $25 per week or 10% of the total value of the invoice per month in arrears (original due date on the invoice), whichever is greater will be added to the total amount of the invoice.
2.2 Where we make individual deliveries of products or deliveries in instalments, you may be invoiced separately for each delivery in which case, you agree to pay each invoice according to its terms.
2.3 If you subscribe to an online service that permits you to purchase access to additional services on a transactional basis, you will be charged per transaction.
2.4 If you purchase a product through us that is published by another company, you will be required to pay our cost of the importation of the product and we may charge a fee for delivering the product to you. The importation cost will be included in the product price on the invoice for the products. The fee may be listed separately on the invoice or included in the product price.
2.5 If we have to convert the price or the charge for the cost of importation from another currency, you agree that we have absolute discretion in relation to the exchange rate used to make the conversion.
2.6 All Paypal, Credit Card, International payments are subject to a surcharge. We reserve the right to make changes to this surcharge from time to time or to extend the surcharge to other methods of payment. If we do make any changes, we will give you reasonable notice in writing before the changes take effect.
2.7 We may make available or send documents and information to you, including invoices, by means of an electronic communication. You acknowledge that we are not liable in respect of:
(a) any error, omission or loss of confidentiality arising from an electronic communication;
(b) any unauthorised copying, recording or interference with a document;
(c) any delay or non delivery of a document; or
(d) any damage caused to your system or files by such electronic transmission (including by any computer virus).
3.1 You accept that dates we give you for delivery are our best estimate, are given in good faith and may be subject to change without notice.
3.2 We will deliver products ordered to the address supplied on your order form or to an alternate address that we agree in writing.
3.3 You agree that delivery will be complete when the products are sent to your nominated address. Delivery by us to a carrier will be deemed to be delivery to you.
3.4 You agree that photography is a creative process and as such our products and services will be delivered in our creative type, style, form, quantities and processing choices. Re processing or additional services will incur extra billable hours starting at $250 ex per hour.
3.5 We may at our discretion use a selection of photos that are relevant on our website and our online profiles such as but not limited to social media or directory listings. They may also be used for self promotion and educational purposes on third party sites we approve. We never sell them to stock library’s.
We may at our discretion create a blog post of your session and amplify and promote your brand or cause to our audience.
4. RISK AND TITLE
4.1 The risk in any services or products that you order from us will pass to you on delivery irrespective of when payment is completed.
4.2 You agree that all services or products remain our property until you have paid for them in full. Until then, you acknowledge that we remain the equitable and legal owner and that you are in possession of those products only as our bailee until you have completed payment. For the avoidance of doubt, your entitlement in relation to any service is limited to a licence only for that period and ownership remains with Orlando Sydney or its licensees until payment in full is made.
4.3 You are liable to pay in full the price of any services or products delivered to you. If you fail to pay for products by the due date for payment, we will be entitled, upon reasonable notice, to retake possession of the products, resell them and keep the proceeds of the sale. Any shortfall remaining in the amount owing after resale will remain a debt owed by you.
4.4 The purchase of our photos and services does not constitute the assignment of any intellectual property rights to you. You are provided with a perpetual, non-transferable, non-exclusive limited licence to use and access the relevant work in digital format for your use only. Your licence does not apply to third party vendors, such as and not limited too; Audio and Video providores, Staging vendors, Florists and props suppliers, venues and their controlling bodies. If third parties would like like to use any of our digital assets they must get written permission from Orlando Sydney Photography first. (You and your immediate client excluded) If you wish to re-distribute for competition entry’s or stock photos, and to third party vendors and publications, you must obtain an express licence from us to do so.
All images and assets appearing on Orlando Sydney Photography web site, unless noted otherwise, are the exclusive property of Orlando Sydney Photography and are protected under the Australian and International Copyright laws. The images may not be reproduced, copied, transmitted or manipulated without the written permission of Orlando Sydney Photography. These copyright laws impose substantial penalties for infringement, and violators will be prosecuted to the full extent of the law.
The use of any images or other materials included herein, in whole or in part, for any purpose other than the private purpose of viewing them online, including, but not limited to, copying, reproduction, publication (including on Internet Web Site including third party web pages by any means, including “hotlinking”, storage in a retrieval system (other than internet browser), manipulation (digital or otherwise), or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, is expressly prohibited without the written permission of Orlando Sydney Photography. All artistic and moral rights of the author are hereby asserted.
We welcome all inquiries regarding usage of our work but first you must seek permission from Orlando Sydney Photography using the contact form or direct email.
5. SUPPLY OF SUBSCRIPTION PRODUCTS AND SERVICES
5.1 When your order for a subscription product or service is accepted, we will:
(a) supply that product or service to you in one or multiple instalments for an initial subscription period of 12 months unless specified otherwise in your order or invoice (“Initial Period”); and
(b) continue to supply that product or service to you after the Initial Period has expired until you cancel the order for that product or service in accordance with clause 7.
5.2 We can immediately cancel your subscription to a product or service at any time by giving you written notice if, for example, there are changes in law or circumstance relating to the ongoing availability of that product or service. If we do that, we will refund to you, on a pro-rata basis, any part of the subscription fee that you have already paid that relates to the unused portion of that subscription or service.
5.3 If you are subscribing to a service to which these Terms apply, the terms of the Addendum will also apply to your use of that service.
6. ADVERTISING SERVICES
6.1 If you purchase advertising space or promotions in one of our products or services, we will send you a confirmation order setting out the applicable costs, the size of the advertisement and the edition(s) in which your advertisement will be published. We will process your order once you have accepted the terms set out in the confirmation order, including these Terms.
6.2 Unless you have requested us to design the artwork for your advertisement, you will be required to provide the draft artwork by the dates specified by us.
6.3 Once we receive your draft artwork, we will format it for publication and send you the final proof for your written approval by the specified reasonable deadline.
6.4 If you fail to provide the artwork timeously or to approve the final proof by the deadlines specified, we may not be able to publish your advertisement. Note that you will nevertheless be liable for the fee specified in your order.
6.5 You warrant that you are authorised to provide us with the artwork or any other content for publication in the product or service and that such material will not infringe any third party intellectual property rights, will not be in breach of any applicable laws or regulations and will not be obscene or defamatory.
7. RETURN OF PRODUCTS AND CANCELLATION OF SUBSCRIPTIONS
7.1 You can only return products or cancel services and subscriptions if you do the following
(a) Non-Subscription Products
You must notify us in writing within 2 days of the date of the invoice for that product that you want to cancel that order which has not been completed.
(b) Subscription Products and Services
You must notify us in writing that you wish to cancel your order for any service or product no later than 2 days after the date of your first invoice from us. If you want to cancel after the first invoice:
(i) Fixed term subscriptions – you may only cancel if you notify us no later than 14 days after the date of any renewal invoice. If you cancel an order for a fixed term subscription more than 14 days after the date of the renewal invoice, your cancellation will only take effect at the end of the subscription period for which you have already been invoiced.
(ii) Charge per update subscriptions – where you are invoiced for each update, you may cancel the update no later than 14 days from the date of the invoice for that update. If you want to cancel the entire service or subscription i.e. no longer receive updates for that subscription, you can cancel at any time, but you will not receive a refund or credit for updates where the invoice date is more than 14 days prior to your cancellation.
7.2 Whenever you notify us that you wish to return a product or cancel a service you must: (a) provide us with the invoice number and product or service title or Code where relevant; (b) tell us the service you wish to return or the number of users for whom access will be terminated; and (c) in the case of prints or files sent, no returns will be accepted and it must be paid for.
7.3 If you fulfil the conditions in clauses 7.1 and 7.2 we (in our absolute discretion) will either issue you with a credit or refund the purchase price or subscription fee paid by you.
7.4 Except where required by law, you will not be entitled to a refund or credit if you cancel an order but do not complete all of the steps set out in clauses 7.1 and 7.2 above. Returning products or cancelling a service will NOT entitle you to a refund or exempt you from paying the balance of the fee or charge due.
7.5 You may not return a digital asset nor may you cancel the services already carried out.
8. UNANTICIPATED EVENTS
We may cancel or suspend delivery of any ordered service or product in the event of any delay or non-performance due directly or indirectly to wars, terrorism, strikes, lockouts, delays or defaults of manufacturers or suppliers, act of God, or any other cause beyond our reasonable control.
If you default in performing your obligations under these Terms and we incur expenses in enforcing our rights under these Terms (for example and without limitation, expenses incurred by us in recovering any moneys owed by you to us), you must pay to us any reasonable costs on demand (including all legal costs on a full indemnity basis).
10.1 In these Terms references to “Personal Information” and “the Privacy Act” have the meaning given to those terms in the Privacy Act 1988 (Cth).
10.2 You acknowledge that Personal Information collected, used and disclosed by us may be used for a variety of purposes including:
(a) to supply products and services;
(b) to monitor use of our products and services for the purposes of further development and to ensure they meet your needs and interests;
(c) to administer your account and to enforce this contract; and
(d) for marketing purposes which may include disclosure of your information to other members of Orlando Sydney Photography.
10.3 If you do not want us to use Personal Information disclosed by you to us for marketing purposes, please advise us in writing.
10.4 You expressly acknowledge and consent to:
(a) us transferring and disclosing Personal Information provided by you to us to our third party service providers located outside of Australia (including, but not limited to, the United States) to the extent required in providing access to, maintaining and servicing our products and services as part of our information technology arrangements; and
(b) such third party service providers storing and processing such Personal Information provided by you on servers outside of Australia (including, but not limited to, servers located in the United States).
10.5 If you provide us with Personal Information about another individual, you will ensure that that individual is aware:
(a) that you have supplied their Personal Information to us and the reason; and
(b) of the details in this 10 which apply to information we collect about them.
10.6 You are responsible for ensuring that if a third party is required to disclose Personal Information to us for the purposes of these Terms on your behalf or at your request, such disclosure by the third party complies with the Privacy Act.
10.8 If you fail to provide any information requested by us, we may be unable to supply the products and services that you order or request.
10.9 If you apply to us for credit terms we may give certain information about you including identity particulars to a credit reporting agency and we will tell you separately about other uses and disclosures of your Personal Information relevant to your application for, or our provision of, credit.
10.10 If we are required to retain any Personal Information by law:
(a) you warrant that you have taken all steps to ensure that we are permitted to do so; and
(b) on reasonable notice, and the payment of a reasonable charge, we will make such information available for inspection by you and your auditors.
11.1 In these Terms references to “GST”, “supply” and “tax invoice” have the meaning given to those terms in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the term ”GST” also includes any penalties or additional taxes imposed in relation to the GST payable in relation to the supply of services under these Terms.
11.2 Any amount payable by you under clause 2 is inclusive of GST or as noted on the invoice.
11.3 If the amount of GST paid or payable by us on a sale made to you differs from the amount of GST you have paid to us for the products or services sold, then the amount of GST paid by you will be adjusted either by further payment by you to us or repayment to you by us of the amount of the adjustment.
11.4 In relation to any GST paid by a party under these Terms, including any adjustment, the payee will provide the payer with a tax invoice.
12. TERMINATION FOR BREACH
Without prejudice to any other right at law, either party may terminate these Terms by giving written notice, if the other party has failed to remedy a material breach of any term of these Terms within 21 days of being given written notice of the breach (the notice to include details of the relevant breach). Where you have breached a material term we may elect, in the alternative, to cease supply of products or services to you until we are reasonably satisfied that you have remedied the breach.
13. DISCLAIMER OF LIABILITY AND WARRANTIES
13.1 If any law or regulation including but not limited to the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law, confers rights and remedies on you in relation to the provision by us of products or services ordered by you which cannot be excluded, restricted or modified (“Non-excludable Rights”), we do not exclude any Non-excludable Rights but we do exclude all other conditions and warranties implied by custom, law or statute.
13.2 Except as provided for by the Non-excludable Rights:
(a) all products and services ordered by you are provided without warranties of any kind, either express or implied;
(b) we do not warrant that those products and services will be complete or free from all errors;
(c) we do not warrant that information will continue to be available to us to enable us to keep those products and services up-to-date; and
(d) all representations are expressly excluded and you have not relied on any representations in ordering products and services from us.
13.3 Subject to clause 13.1, under no circumstances (including but not limited to any act or omission on our part) will we be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which result from any use, or any inability to use, our products or services.
13.4 To the fullest extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded, but can be limited, is limited, at our option to supply of the product or service ordered by you again.
14.1 You must not assign or transfer these Terms or any right or obligation under these Terms to any third party without our prior written consent which consent shall not be unreasonably withheld; however, upon at least 60 days written notice to us, you may assign these Terms to any present or future parent, subsidiary, or affiliate, or as part of the sale of your business using the products and services provided hereunder, or pursuant to any merger, consolidation, or other reorganisation, without our consent PROVIDED THAT:
(a) the assignee is solvent and capable of performing the assignors obligations contemplated in these Terms; and
(b) where users increase you notify us so that an appropriate adjustment in pricing can be made.
14.2 We may assign these Terms or any right arising out of these Terms without written notice to you.
14.3 An assignee of either party, as authorised hereunder, shall assume all of the rights and obligations of the assigning party set forth in these Terms.
15. GOVERNING LAW
These Terms will be governed by and construed according to the law of New South Wales and the parties agree to submit to the jurisdiction of the courts and tribunals of or exercising jurisdiction in that State.