TERMS AND CONDITIONS OF COMMISSIONING AND REPRODUCTION OF PICTURES FROM THE FOURTH WALL PHOTOGRAPHY
1. Terms and Definitions:
(a) “Picture” includes a photograph, images, transparency, negative, digital scan, design, artwork, painting, montage drawing, engraving or any other item which may be offered for the purposes of reproduction;
(b) “Reproduction” includes any form of publication or copying of the whole or part of any picture and whether or not altered by printing, photography, slide projection (whether or not to an audience) xerography, artist's reference, artist's illustration, layout or presentation, electronic or mechanical reproduction or storage by any other means;
(c) The “Photographers” are the Authors of the photograph.
(d) The “Client” is the person or organisation to whom the invoice is addressed (whether or not the Client is acting for or on behalf of a third party);
(e) The Fourth Wall Photography administers the licensing of the works of the Photographers.
(f) These terms and conditions represent the entirety of the agreement between The Fourth Wall Photography and the Client. Any variation to these terms and conditions are only applicable and valid when agreed to by both parties in advance and in writing;
2. Copyright and Ownership of Materials:
(a) The entire copyright in the pictures shall be retained by the Photographers at all times throughout the world and is administered by The Fourth Wall Photography.
(b) Title to all photographs remains the property of the Photographers;
(c) Images are licensed for the use for a period of a year under this agreement, unless otherwise agreed to prior to their creation by both parties in written form. The Client is expected to comply at all times with the terms and conditions of this agreement.
(d) The renewal of of usage licenses are charged on a per image basis and will be outlined in our quotations.
(d) This agreement in no way confers a release, transfer, assignment or disposal of the Photographers’ rights in the images in any way unless explicitly stated in written agreement between both parties, prior to the creation and/or modification of such images.
(e) Whilst the Photographers retain the right to ownership of the pictures, they restrict their usage of such images to marketing, advertising and promotional activities only.
(f) The Photographers, as administered by The Fourth Wall Photography, agree to supply the technical and artistic ability to illustrate an idea photographically, and sell the right to reproduce those pictures in a given context. No property or copyright in any pictures shall pass to the Client whether on its submission or on The Fourth Wall Photography’s grant of reproduction rights in respect thereof;
(g) By utilising our service it is understood that the Client has read, understood and irrevocably agreed to these terms and conditions; unless otherwise stated in writing and signed by both parties as proof of the amendments.
3. Use and Reproduction:
(a) The License to Use only comes into effect once full payment of the invoice has been made and received by the Photographers. No use may be made of the images until full and final payment – including any late payment charges that may have been levied – has been received by The Fourth Wall Photography.
(b) Permission in writing may be granted for image use before payment, however this permission will be immediately revoked if payment of the invoice is not made by the timescale stated on the invoice;
(c) Reproduction rights are not issued exclusively to the Client except when specified on the invoice;
(e) Reproduction rights granted are personal to the Client and may not be assigned, nor may any image submitted to the Client be loaned or transferred to third parties save for the purpose of the exercise by the Client of such reproduction rights;
(f) Any reproduction rights granted are by way of license and no partial or other assignment of copyright shall be implied;
(g) The Fourth Wall Photography reserves the right to refuse to supply or grant a reproduction license to a third party when requested to do so by the Client;
(h) In the case of printed publications, the client will provide copies or a PDF document of the relevant pages containing any picture supplied, to The Fourth Wall Photography free of charge within two weeks. In other media, evidence of use must be made available if requested;
(i) On the Client's death or bankruptcy or (if the Client is a company) in the event of a Resolution, Petition or Order for winding up being made against it, or if a Receiver is appointed, The Fourth Wall Photography may at any time thereafter inspect any records, accounts and books relating to the reproduction of its pictures to ensure that the pictures are being used only in accordance with the reproduction rights granted to the Client.
(j) Images are stored online i.e. Dropbox or Google Drive for a period of 2 weeks (14 days) from date of delivery. During this period the client is responsible for downloading the images and storing them. A backup of the images are kept on our server for a period of 2 months should the client lose the images.
(k) It's the client's responsibility prior to the commencement of the shoot to alert the photographer as to the format and file size in which they would require the photographs. Non-communication would result in the images being reproduced in the standard JPEG format and applicable file size, and subsequent changes would result in a standard modification fee of R50 per image.
4. Definitions of Reproduction Rights:
The following terms are used when describing the reproduction rights granted by The Fourth Wall Photography and the Photographers to the Client:
(a) Internal Use only: The right to use the pictures only within a company for non-commercial purposes; publication in a free in-house magazine not normally available to the public; exhibition within the Client's premises; editorial use in the Client's intranet site;
(b) PR and Press distribution: The right to use the pictures as described in 4(a); plus a license for third parties to reproduce such pictures in print or electronic media in an editorial context where no fee has been paid to guarantee publication;
(c) Specified Use Only: The right to use the pictures once only for the purpose as described on the invoice;
(d) Editorial: One reproduction only of pictures supplied within one print edition of the specified title in an editorial context only.
5. Booking and Cancellation:
(a) The Client will be required to complete a Booking Form. On receipt of the booking form and a 50% deposit, The Fourth Wall Photography will send an email as confirmation. The booking will then be considered Confirmed.
(b) Once the Client has made a booking for a specific time and date and this date/time has been Confirmed, The Fourth Wall Photography will not accept any other work from other clients for those times and dates;
(c) As a result, once a booking is Confirmed, if it is subsequently cancelled, a cancellation fee will be charged to the client according to the following schedule: (i) When a client cancels a confirmed booking within 10 business days of any confirmed date, a cancellation fee will not be charged; (ii) When a client cancels a confirmed photoshoot within less than 10 business days of any confirmed date, a fee of 20% of the booked time rate will be charged. (iii) In addition to this cancellation fee, the client will be charged for any expenses already incurred by The Fourth Wall Photography.
6. Payment Terms:
(a) Full payment on all services rendered is due immediately upon receipt of the images requested unless a payment term has been agreed upon by The Fourth Wall Photography and its Client.
(b) The Client's right to use a picture arises only when The Fourth Wall Photography's invoice relating to the grant of such right is fully paid (including interest charges levied on late payment of the invoice or invoices). Any reproduction before payment of the invoice constitutes an infringement of rights and a breach of this Agreement entitling The Fourth Wall Photography to rescind the Agreement and rendering the Client liable for the payment of damages.
(c) Should an invoice remain overdue for more than 14 days from the issue date, The Fourth Wall Photography may consider pursue legal action for the recovery of said debts. The images subject to this debt shall be considered the property of Fourth Wall Photography until such a time as the outstanding debt is settled in full, The Fourth Wall Photography reserves the right to report the debtor for copyright infringement. A cease and desist notice will be submitted to various MLS platforms, marketing, editorial and PR platforms requesting the removal of said images.
(d) Any unauthorised usage of the images shall be considered a direct contravention of the legal contract and terms and conditions between The Fourth Wall Photography Company, the photographer and the client. Unauthorized usage shall be subject to immediate legal recourse by The Fourth Wall Photography company.
(e) Only payments made by way of Cash, Direct Deposit and EFT will be accepted and relevant details shall be provided on The Fourth Wall Photography Invoice issued in respect of the commissioned project. Payment plans shall only be accepted as valid when agreed to prior to the creation of the Images in writing between both parties.
(f) All projects undertaken amounting to a value of more than R1 500.00 are subject to a deposit of 50% of the project total, payable to the Photographers prior to the commencement of any planning or fieldwork.
(a) The Fourth Wall Photography will edit every picture and deliver what it considers to be the best of every situation covered. It is the client's responsibility to ensure that a brief of what is required is sent to The Fourth Wall Photography or the photographer prior to the photoshoot / video shoot. In instances The Fourth Wall Photography or photographer has not received a brief, all images / videos taken by the photographer will be based on what he / she believes best represents the property and no responsibility / liability will be accepted for the rejection of said images / video.
(b) The Fourth Wall Photography reserves the right to levy the Client with a rejection fee of 20% of the total project cost.
(c) Clients are provided with a 7 day period from date the photos are received to advise of a rejection of work. Upon informing us of a rejection of work, the client needs to be provide adequate reason in writing for the rejection i.e. image distortion, incorrect image colours, out of focus images, etc. per image. Rejections will not be accepted for non preventative matters i.e. staging, incorrect model attire, dirty property, furniture obstructions, etc.
(d) Should the rejection be accepted, the client will be refunded within 7 days of the acceptance or a reshoot scheduled subject to availability. All usage rights for the initial images are revoked from the client and continued use of the work completed (images, video) will be considered copyright infringement.
8. Liability and Indemnity:
(a) While The Fourth Wall Photography takes all reasonable care in the performance of this agreement generally, it shall not be liable for any loss or damage suffered by the Client or by any third party arising from use or reproduction of any picture or its caption;
(b) The Client agrees to indemnify The Fourth Wall Photography in respect of any claims or damages or any costs arising in any manner from the reproduction without proper reproduction rights of any picture supplied to the Client by The Fourth Wall Photography;
(c) It is the Client who must satisfy himself that all necessary rights, model releases or consents which may be required for reproduction, are obtained and it is acknowledged that The Fourth Wall Photography gives no warranty or undertaking that any such rights, model releases or consents have or will be obtained whether in relation to the use of names, people, trademarks, registered or copyright designs or works of art depicted in any picture. In the event that the picture issued or reproduced by or with the authority of the Client then the Client shall indemnify The Fourth Wall Photography against any loss or damage, proceedings or costs where such rights, releases or consents have not been obtained.
(d) Third parties (including Clients) will be held liable for any damage suffered to the photographer's equipment or person where there has been negligence on behalf of the third parties. Photographers will be held liable for all damages suffered in all other circumstances. Clients will be alerted to all damages and shall be invoiced for amounts subject to timeous disclosure of the incident by the photographer to The Fourth Wall Photography and subject to subsequent documentation supporting the repair/replacement cost to be incurred.
9. Applicable Law:
(a) This agreement and its termination shall be governed by and construed in accordance with the laws of the Republic of South Africa.
(b) Both the Photographer and the Client(s) agree that all legal action based on any claim arising under or out of this agreement must be determined in accordance with South African Law and filed and prosecuted in a court of competent jurisdiction located in the Republic of South Africa and each of them hereby consents and irrevocably submits to the jurisdiction of such court in respect of all legal action or proceedings arising out of or in connection with this agreement, its implementation, interpretation and/or termination.
(c) The Client(s) hereby consents to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings which may be brought against him/her by the Photographer in connection with this Contract, notwithstanding that such action or proceedings would otherwise be beyond such jurisdiction without prejudice to the Photographer’s right to institute action in the Supreme Court having jurisdiction.
10. Validity of Quotation and Cooling-off Right:
The Fourth Wall Photography quotations are valid for 14 (fourteen) days only and the services on this offer will be reserved subject to payment of the deposit as stated in paragraph 6 of this agreement.
Should this contract have been entered into as a result of direct marketing as defined in the Consumer Protection Act 2008, then the Client(s) attention is drawn to the rights inferred upon them in terms of section 16(3) of the Consumer Protection Act, in terms of which the Client(s) may terminate this agreement, without reason or penalty, by written notice to the Photographer after a 5 (five) day period after signature hereof, and to have any amount already paid by them in terms hereof refunded in the event of such termination.
11. Cancellations and Refunds:
(a) Cancellations are considered valid and shall not be subject to recourse so long as they are made directly by The Client and within the scope of this agreement.
(b) Upon cancellation, clients will receive an email confirming receipt and/or acceptance of the notice of cancellation.
(b) Refunds shall be processed within seven (7) business days from the date of a confirmed cancellation and shall be processed by way of EFT (Electronic Funds Transfer) into the account from which the funds were initially received without exception, unless otherwise agreed to prior to transfer, directly with the client.
12. Client Confidentiality:
The Photographers and The Fourth Wall Photography will keep confidential and will not disclose to any third parties or make use of information communicated to them in confidence for the purposes of the photography, save as may be reasonably necessary to enable the Photographer or The Fourth Wall Photography to carry out their obligations in relation to the commission.