SJ CREATIVE
Terms and Conditions of Trade
Last updated: 19-09-24
1. GENERAL
1.1 In these Terms and Conditions:
a) “Agreement” means any order relating to the Services, and these Terms and Conditions.
b) “We” or “Us” means SJ Creative Limited and its successors and assigns.
c) “You” means the person, firm, company or entity buying Services from us.
d) “Services” means all Services we will supply to you under a quote, proposal, order or invoice relating to photographic and related creative services.
2. PRICE
2.1 Price plus tax: You will pay the price indicated on the quote, proposal, invoice, or other similar document issued by us (“Price”), together with the amount of any Goods and Services Tax or any other tax which may be payable in respect of the supply of Services or otherwise under these Terms and Conditions.
2.2 Quote: Any quote we have made for the supply of Services constitutes an invitation to treat and not a binding offer. All quotes lapse after 30 days but we reserve the right to change or withdraw any quote without notice at any time. Estimates are based on the anticipated creative, consultation services time and production requirements and our expectations of client co-operation in provision of content, meeting deadlines and approval.
2.3 Price variations: The Price may be revised during provision of the Services in circumstances including but not limited to:
a) delays caused by you;
b) you request additional work after sign-off;
c) you choose to purchase additional Services;
d) additional third party costs incurred;
e) where you request changes to the final work product; or
f) other circumstances outside our control.
We will endeavour to give you a quote for any additional work arising from scope changes but if we are not able to do that we reserve the right to charge you our casual hourly rate for that work.
2.4 Change of Rates: We reserve the right to change any previously notified hourly rate for casual work on 30 days’ written notice to you.
2.5 Rush fees: We reserve the right to apply an increase of up to 10% of the Price where you require the Services to be completed urgently.
2.6 No deductions: All payments by you will be full, free and clear of any deduction, withholding, set-off, counterclaim or other claim.
3. PAYMENT
3.1 Deposit: In order to confirm a booking for Services you will be required to pay a deposit of 30% of the quoted Price.
3.2 Payment of balance: You will pay your account as stated on our quote, proposal, invoice or as otherwise agreed. We reserve the right to not publish or deliver our work to you until your account has been paid in full. If the Services are to be performed in stages we may require you to pay for a stage in full before we will start on the next stage. We reserve the right to issue interim invoices where a project has become inactive for 30 days or more.
3.3 Expenses: Agreed third party expenses will be invoiced to you in advance or included in the deposit and we reserve the right not to progress the associated Services until we receive these payments or evidence that you have paid them directly in full.
3.4 Acceleration: Notwithstanding such credit period, full payment for all unpaid Services will become due immediately upon:
a) You or any guarantor becoming insolvent or bankrupt;
b) The commencement of any act or proceeding in which your or any guarantor’s insolvency is involved; or
c) You or any guarantor resolving to wind up or being ordered to be wound up or having a receiver, liquidator of official manager appointed in respect of all or any of your assets; or
d) You or any guarantor ceasing to trade.
4. TERMINATION
4.1 Termination by us: We are entitled to terminate this Agreement at any time on at least 14 days’ written notice. If we do so before we have started performing the Services, we will refund your deposit in full. If we have partially performed the Services, we reserve the right to charge you for work that has already been done where:
a) the amount of any deposit paid is not enough to compensate us for that work; or
b) you have not paid a deposit.
4.2 Termination by you: Where you terminate this Agreement 30 or more days before the session date any deposit paid will be refunded in full but we reserve the right to reduce your refund so that the amount we retain reflects the work we have already done or third party fees incurred. If you terminate this agreement 29 or fewer days before the session date you will not receive a refund.
4.3 Termination due to weather: Where Services are fully terminated due to inclement weather clause 3.2 will apply.
5. PENALTY FOR LATE PAYMENT
5.1 Default interest: Failure by you to make payment in full of any amount payable pursuant to this Agreement on the due date constitutes a default and, without prejudice to any other rights or remedies available to us, simple interest at 2% per month will be payable upon demand and from the due date until payment.
5.2 Legal costs: You will indemnify us against all loss, costs and expenses, including legal costs on a solicitor/client basis, which we may suffer or incur as a result of any failure by you to make due and punctual payment.
6. PERFORMANCE OF THE SERVICES
6.1 Commencement: Unless otherwise agreed in writing we will not confirm your session date nor start performing the Services until we receive your acceptance of our quote or proposal and your deposit payment.
6.2 Time: We undertake to use reasonable endeavours to deliver the Services within the time specified by us but dates we give for performance will be indicative only. No date specified by you will be binding on us without our written agreement.
6.3 Rescheduling: We may agree to reschedule session bookings on the following basis (subject to availability):
a) In the case of illness (ours or key individuals in your organisation) or inclement weather, there will be no additional cost;
b) Where you wish to reschedule for any other reason you must notify us at least 7 days before the session date. If you notify us within 7 days of the session date, or you need to reschedule twice or more, we may charge an additional fee of up to 10% of your quote plus any third party costs incurred. Alternatively you may terminate this Agreement, in which case clause 4 will apply.
c) For the avoidance of doubt, you are responsible for covering any third party costs incurred due to rescheduling.
6.4 Services and files to be supplied: You acknowledge and agree that the Services and file formats supplied are limited to those set out in the quote, proposal, invoice, or other similar document issued by us. We do not supply the original raw files, links, development files or other material generated.
6.5 Declining Services: We reserve the right to decline any request for work that we consider is contrary to our professional standards or that in our view may be harmful to your or our reputations. If you object to us declining any work under this clause we have the right to terminate this Agreement with immediate effect.
6.6 Portfolio and credit: You agree that we may use samples of the work we have created for the purposes of marketing our services and our business. We may also enter images in industry competitions or exhibitions. If you need us to temporarily hold off from disclosure or publication we can accommodate this if you give us reasonable notice. You further agree to publish a photographer credit or tag us on social media where possible when you use the work and to request any third parties to also give photo credit.
6.7 Copyright: Unless otherwise agreed, we retain intellectual property rights in all original work we have prepared on your behalf as part of the Services. We also retain copyright in unused or rejected content generated in the course of performing the Services. You receive a licence to use the work as stated on our proposal or quote. If a licence is not specified on our proposal or quote, then our Standard Licence for usage applies (commercial, non-exclusive, all/unlimited media, worldwide, in perpetuity). This licence also permits you to provide the work to third parties only for non-advertising purposes and on the basis that photo credit is given.
6.8 Exclusions: Unless itemised in our quote the Price excludes: photography or video outside of our in-house resources; travel and accommodation costs where we are required to travel more than 25 kms from our business premises; procuring and any fees for talent (models and actors etc.); any third-party media, production, distribution, couriers, proofs, mock-ups, proof reading or printing that may be required; other third-party costs incurred (props and perishable items, payment charges) etc.
7. YOUR OBLIGATIONS
7.1 Contact Person: You will nominate a person in your organisation to be our primary point of contact. That person will be responsible for complying with your obligations as set out in this clause, including obtaining sign-offs, and coordinating with other members within your organisation. We are entitled to rely on instructions and sign-offs given by that person and are not required to make further inquiry at any time.
7.2 Content:
a) You will provide us with any relevant information or material required to enable us to perform the Services.
b) Where information you give us is incorrect and we are required to undertake additional work we reserve the right to charge for such additional work;
c) Where you supply us with products to feature, they must be in good condition and simple to work with. If not we may need to vary the Price to reflect the additional work required of us;
d) You will manage the content you need included in the session (such as materials, locations, people etc) and acknowledge that you are responsible for the condition and quality of this content.
e) When we send you work you will check it thoroughly. We will not finalise work until we are satisfied with your written sign-off. Once final files have been delivered and signed off, we cannot be held responsible financially or otherwise for any errors or omissions in the end product.
f) Due to the inconsistencies associated with viewing files on various monitors, the actual colours produced in printing may vary from proofs as viewed on your screen. You confirm you have told us how the work will be used and the specific file formats you will need.
g) You undertake to download, save and backup all work we deliver to you as we do not promise to store your data for any particular period.
7.3 Third Party Rights: You acknowledge and warrant that:
a) You will be responsible for obtaining all necessary model releases, moral right waivers and privacy waivers.
b) You own any material you provide to us, free of any claims or encumbrances and are entitled to provide that material to us; and
c) Any material you provide to us is yours and does not violate any existing intellectual property rights including, without limitation, copyright, trade mark, or any other proprietary or contractual rights.
8. OUR WARRANTIES
8.1 We warrant that:
a) We have the right to enter into this Agreement;
b) We will perform the Services to a reasonable standard of care and skill;
c) We will perform the Services in accordance with relevant laws.
9. LIABILITY
9.1 Limitation of liability:
a) Claims: We will have no liability for unsatisfactory Services or work product unless you notify us in writing of your claim within 14 days after delivery of the final work product or each stage of the project (as appropriate);
b) We will have the option, exercisable at our discretion, to replace or give credit for any services in respect of which any claim is made or proven or to refund a portion of the price paid for the Services, thereby fully discharging all our legal liability;
c) We will not be liable for any damage or loss to property you have supplied to us;
d) If either party is liable for direct losses arising from a breach of this Agreement or for negligence, the liable party’s obligation to pay damages or losses is limited to the Price paid for Services under this Agreement. This limitation does not apply to any loss or damage caused by fraud, wilful breach or wilful damage;
e) We are not liable for any loss caused by you, or any loss that results from your failure to take reasonable steps to avoid or minimise your loss. In particular, we are entitled to rely on the written sign-off of your nominated primary point of contact, which confirms all work is approved;
f) Notwithstanding any other provision of this agreement, neither party will be liable for indirect, special, consequential or similar damages or losses, including but not limited to loss of profit or revenues or other financial or economic losses of any kind and whether or not the other party has been advised of the potential for such damages.
9.2 Indemnity: You will be liable for, and will indemnify Us against, any and all liability, loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by us, whether direct or consequential (including without limitation any economic loss or other loss of profits, business or goodwill), arising out of any dispute or contractual, tortious or other claim or proceeding brought against us arising from any third party claim including but not limited to claims that the work infringes a third party’s intellectual property rights.
10. GENERAL
10.1 Variations: We reserve the right to change these Terms and Conditions at any time with effect from the time we notify you. These changes will only apply to the extent they are not detrimental to you.
10.2 Events outside our control: If any cause beyond our reasonable control including but not limited to order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring components or equipment, embargo, accident, emergency, natural event interfere with our performance of any of our obligations under these Terms and Conditions then we may at our sole discretion suspend our performance of any such obligation or cancel any contract for the purchase of Services and we will not be liable to you in any respect.
10.3 Waiver: These Terms and Conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. We will not be deemed to have waived any condition unless such waiver will be in writing and such waiver will only apply to the particular transaction to which it refers.
10.4 Severability: If any clause or provision of these Terms and Conditions will be held illegal or unenforceable by any judgement of any Court or Tribunal having competent jurisdiction, such clause will not apply to this Agreement. The remaining provisions of this Agreement will remain in full force and effect as if the clause or provision held to be illegal or unenforceable had not been included.
10.5 Privacy Policy: Any personal information collected by us in connection with this Agreement will only be used or disclosed for the purposes of ensuring performance of this Agreement and any future like arrangement or arrangements. This may include disclosure within our organisation and to other parties involved in performing the Services. We agree to comply with relevant privacy laws in respect of any personal information collected in connection with the provision of the Services and any future like arrangement or arrangements.
10.6 Electronic Communications: You consent to receive commercial electronic messages from us. If you wish to opt out of receiving these messages you can unsubscribe from the mailing list.
10.7 Confidentiality: Each party must keep confidential during the term and after termination of this Agreement the existence and terms of this Agreement and all information of a confidential or sensitive nature supplied by the other party to this Agreement except to the extent that disclosure is required by law or where such information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this Agreement. A party may disclose such information to its legal and other advisers, bankers and other persons who are subject to an obligation of confidentiality.