Here follow Gavin Higgins Photography’s Terms and Conditions, as referred to on the Booking Form.
1.1 The Client appoints Gavin Higgins Photography to render the Services to the Client on the terms and conditions set out in this Agreement.
1.2 The Client agrees that Gavin Higgins Photography’s appointment shall be as the sole and exclusive photographer for the Shoot.
1.3 The Client appoints Gavin Higgins Photography as a principal and not as an agent of another party. The Client acknowledges that it remains solely responsible for complying with the provisions of this Agreement, notwithstanding any agreements it may have with third parties in relation to the subject matter of this Agreement.
2 Important Provisions to Note
2.1 This Agreement contains provisions which limit Gavin Higgins Photography’s liability to the Client. These provisions may even make the Client liable in some cases. These provisions are largely found in clause 13 although there may be other provisions in this Agreement which have a similar effect.
3 Commencement and Duration
3.1 This Agreement shall commence on the Signature Date and shall, save as is set out elsewhere in this Agreement, terminate on completion of the Services.
4.1 Either Party may terminate this Agreement on 1 month’s written notice to the other Party.
4.2 In the event of either Party being in breach of this Agreement and the other Party terminating this Agreement pursuant to such breach on the basis set out below.
4.3 Effects of Termination
4.3.1 In the event this Agreement is terminated for any reason whatsoever, the following clauses shall survive termination:
4.3.2 Clause 10 pertaining to Fees;
4.3.3 Clause 13 pertaining to Liability;
4.3.4 Clause 14 pertaining to Breach;
4.3.5 Clause 15 pertaining to Governing Law and Jurisdiction; and
4.3.6 Clause 19 pertaining to Domicilium and Notices.
5 The Services
5.1 Gavin Higgins Photography shall, during the currency of this Agreement, render the Services to the Client.
5.2 The Services which the Client has requested and which Gavin Higgins Photography has agreed to render are detailed in the Booking Form as read with the Services’ descriptions on the Website as well as the provisions of this Agreement.
5.3 Gavin Higgins Photography shall not be required to render any services other than the Services or otherwise as agreed to in writing between the Parties.
5.4 The Booking Form may be amended or wholly replaced by the Parties provided that each amended or replacement version of the Booking Form shall be effected in writing and be signed by both Parties’ representatives.
5.5 Booking Form amendments or replacements may, at Gavin Higgins Photography’s discretion, require consequential changes to Gavin Higgins Photography’s fees payable and delivery timeframes for the Services described in the amended or replacement Booking Form. Gavin Higgins Photography shall notify the Client of any such changes in writing and Services based on such amended or replacement Booking Form shall commence on acceptance of such changes by the Client.
5.6 Each version of the relevant Booking Form shall become binding on the Parties upon signature of each version of the Booking Form by both Parties and shall be governed by the terms of the main body of this Agreement.
5.7 The Booking Form, as amended and signed by the Parties’ representatives from time to time, shall specify the Services to be rendered by Gavin Higgins Photography pursuant to this Agreement, as well as any other responsibilities of the Parties.
5.8 To the extent a conflict or inconsistency arises between the Booking Form, as amended from time to time, descriptions of the Services on the Website and the provisions of this Agreement in respect of the Services’ description, the Booking Form’ provisions shall prevail to the extent of the inconsistency.
5.9 The Parties expressly record that each of the Services constitutes a separate and distinct service, and nothing set out in this Agreement shall be construed as obliging Gavin Higgins Photography to render all such Services as a single, indivisible service.
5.10.1 Gavin Higgins Photography shall publish –
184.108.40.206 a blog post on the Website containing a small selection of Content within 7 days of the Shoot.
220.127.116.11 When expressly agreed; a password protected gallery with the edited Content on the Website within three weeks of the conclusion of the Shoot.
5.10.2 Album/s containing the edited Content will, subject to clause 5.10.3 below, be made available to the Client no later than 21 days after the Client has approved the album/s’ content and design and Gavin Higgins Photography has received payment for the album/s.
5.10.3 Third party service providers manufacture the albums referred to above and album delivery times may vary, depending on third party delivery and/or production schedules.
5.10.4 Gavin Higgins Photography shall further deliver edited high-resolution digital Content to the Client simultaneously with prints and albums produced for the Client on the Client’s instructions.
5.10.5 Additional edits or retouching work requested by the Client will be charged at Gavin Higgins Photography’s hourly rate which is available on request.
5.11 Outsourced Services
5.11.1 As at the commencement of this Agreement, certain of the Services set out in the Booking Form are Outsourced Services. The Client agrees to this and acknowledges that, in respect of these Outsourced Services, Gavin Higgins Photography’s Services shall be limited to managing delivery of the Outsourced Services to the Client.
5.11.2 Gavin Higgins Photography shall be entitled at any time and from time to time to change the identity of any External Service Provider and/or to sub-contract any of the Outsourced Services to a new External Service Provider and/or to delegate to one or more existing or new External Service Provider all or any part of its obligations to provide any particular Service to the Client in terms of this Agreement.
5.11.3 The Client acknowledges that the External Service Providers’ terms and conditions of service may govern the provision of the outsourced services as between Gavin Higgins Photography and such Service Provider. The Parties further record and agree that Gavin Higgins Photography shall, at anytime during the term of this Agreement, be entitled to appoint and/or terminate the services of such External Service Providers provided that such appointment and/or termination of External Service Providers shall not be materially detrimental to Gavin Higgins Photography’s performance of its obligations and/or compromise the service levels agreed to in terms of this Agreement.
5.12 Third party services
5.12.1 The Services may incorporate the use of third party websites and/or services. Such uses may include, but are not limited to, publishing digital Content on the Web and making the Content available for sharing through social networks.
5.12.2 The Client acknowledges that Gavin Higgins Photography does not render legal services and that the Client shall remain solely responsible for familiarizing itself with and complying, as well as ensuring compliance, with the terms and conditions governing the use of those third party websites and/or services.
5.13.1 In the event that Gavin Higgins Photography is unable to render part, or all, of the Services due to illness, incapacity or an emergency preventing him from doing so, Gavin Higgins Photography shall appoint a substitute photographer to render those Services Gavin Higgins Photography is unable to render.
5.13.2 Gavin Higgins Photography warrants that the substitute photographer referred to in clause 5.13.1 above shall be suitably qualified professional photographer having regard to the nature of the Services the substitute photographer shall be appointed to render.
6 Service Levels
6.1 Gavin Higgins Photography warrants that it has the expertise and resources to render the Services contemplated herein and shall render the Services with due care, diligence and skill and in accordance with the industry standards expected of expects in its area of expertise.
6.2 Gavin Higgins Photography reserves the right to edit and release Content which Gavin Higgins Photography deems, in his sole discretion, to be within his artistic standards and of sufficient professional quality to merit such release.
7 Client’s Obligations
7.1 The Client shall furnish Gavin Higgins Photography with a complete list of people who the Client wishes Gavin Higgins Photography to photograph in advance of the Shoot.
7.2 The Client warrants that each of the people referred to in clause 7.1 above –
7.2.1 grant Gavin Higgins Photography permission to photograph or record them as well as to use the Content in Gavin Higgins Photography ‘s advertisements and promotional materials, print and electronic publications, video broadcasts, radio broadcasts or any similar electronic and mechanical means; and
7.2.2 waive any right they may have to compensation for the use of the Content as contemplated in clause 7.2.1 above or to inspect and/or approve the finished product in which the Content may be used.
7.3 The Client agrees that it remains solely responsible for obtaining the necessary consents referred to in clause 7.2 above and shall notify Gavin Higgins Photography, in advance, should the Client be unable to obtain the necessary consents.
8 Copyright and License
8.1 The Parties agree that, by virtue of section 21(1)(e) of the Act, section 21(1)(c) of the Act shall not apply and that Gavin Higgins Photography shall remain the owner of copyright in the Content.
8.2 Gavin Higgins Photography grants the Client a Content License in respect of the Content.
8.3 In the event that Gavin Higgins Photography enters the Content referred to above into bridal or other competitions, Gavin Higgins Photography shall only enter Content depicting the marital couple.
9.1 The Client appoints the person identified in the Booking Form as its representatives for purposes of this Agreement. This nominated representative shall liaise with Gavin Higgins Photography in relation to all matters pertaining to the Parties’ performance in terms of this Agreement.
10.1 The Client shall, as consideration for the Services to be rendered by Gavin Higgins Photography in terms of this Agreement, effect payment of the fees and charges detailed in the Proposal, alternatively, where the Booking Form does not specify fees payable for the Services, the fees and charges applicable to the Client’s selected Services as stated on the Website, Quote or Invoice on the Signature Date.
10.2 All such amounts shall be paid to Gavin Higgins Photography by the Client without deduction or set-off on the following basis:
10.2.1 A non-refundable booking fee equivalent to 50% of the total Fees due, payable no later than the Signature Date; and
10.2.2 The balance of the Fees due, payable on or before the first day photographs are taken as part of the Services.
10.3 In the event the Client terminates this Agreement, the Client may be liable for an early termination fee, the amount of which shall be dependent on the proximity of the Client’s termination with the date on which the Services are to be rendered.
10.4 Quotations and Pricing Validity
10.4.1 Gavin Higgins Photography’s quotations are valid for a period of 14 days from the date they are issued to the Client.
10.4.2 Gavin Higgins Photography reserves the right to revise the Fees for the Shoot in the event the Client postpones the Shoot for a period in excess of 1 calendar month calculated from the Shoot’s original date. This Agreement shall terminate should the Client reject the revised Fees and the Client may forfeit its deposit.
10.5.1 The Client shall be responsible for Gavin Higgins Photography’s travel costs outside a 50 kilometer radius of the Gavin Higgins Photography office in Ballito, KZN.
10.5.2 The Client shall, at its own cost, arrange safe and secure parking for Gavin Higgins Photography at the Shoot’s venue and such other locations as Gavin Higgins Photography may be required to render the Services.
10.5.3 Gavin Higgins Photography shall not be liable for shipping costs (including, but not limited to, courier and postage costs) where the Client requires any or all of the deliverables detailed in clause above to be delivered to the Client using the postal, courier or similar services.
10.5.4 The Client shall, at its own cost, provide Gavin Higgins Photography with a meal and soft drinks where the Shoot is a catered event and the Shoot is longer than 2 hours.
10.6 Non-Payment or Inability to Perform
10.7 In the event of the Client failing to effect payment of any amount due, whether timeously or at all, to Gavin Higgins Photography in terms of this Agreement, Gavin Higgins Photography shall be entitled to –
10.7.1 exercise a lien over any or all deliverables pursuant to the Services including, but not limited to, digital Content and photographic prints;
10.7.2 charge interest on all such amounts shall bear interest at a rate equal to 2% above the prime overdraft rate as charged to Gavin Higgins Photography by its bankers from time to time; and/or
10.7.3 suspend the provision of any or all of the Services, at Gavin Higgins Photography’s sole discretion, in terms of this Agreement for any period in which any payment remains outstanding.
10.8 The Client agrees that it shall pay all Gavin Higgins Photography’s expenses in recovering any amounts the Client owes Gavin Higgins Photography, including legal costs on the attorney and Client scale, collection charges and tracing fees, and VAT thereon.
11.3 Gavin Higgins Photography may request confirmation that the appropriate consents referred to in clause 11.2 above, failing which the Client agrees Gavin Higgins Photography may decline to include the children concerned in the Shoot.
12.1 Save as expressly set out in this Agreement, Gavin Higgins Photography does not make any representation or give any warranties whatsoever in respect of the Services.
13.1 Disclaimers and limitation of liability
13.1.1 To the fullest extent permissible by law, Gavin Higgins Photography disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client utilises the Services at its own risk.
13.1.2 The Client agrees and acknowledges that Gavin Higgins Photography –
18.104.22.168 is unable to, and is not required to, guarantee a particular result or set of results; and
22.214.171.124 shall not be responsible for colour print reproduction errors made by third party service providers.
13.1.3 The Client agrees that neither Gavin Higgins Photography or the Gavin Higgins Photography’s Associates shall be liable for any Losses however arising and whatever the cause, in particular pursuant to and in furtherance of this Agreement.
13.1.4 Gavin Higgins Photography’s liability to the Client pursuant to this Agreement shall furthermore be limited to the total amount of the fees charged and paid by the Client in respect of the Services.
13.2.1 The Client hereby indemnifies Gavin Higgins Photography and Gavin Higgins Photography’s Associates from any Losses, which may arise as a result of the Client’s unlawful conduct, wilful misconduct and/or gross negligence.
14.1 Subject to any other provision of this Agreement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of this Agreement and fail to remedy such breach within fourteen days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to –
14.1.1 cancel this Agreement, provided the breach in question is a material breach going to the root of this Agreement; or
14.1.2 claim specific performance of all of the Offending Party’s obligations whether or not due for performance,
14.1.3 in either event without prejudice to the Aggrieved Party’s right to claim damages.
14.2 Either Party shall be entitled to summarily terminate this Agreement in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of this Agreement shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
15 Governing Law and Jurisdiction
15.1 This Agreement shall be governed in all respects by and shall be interpreted in accordance with the laws of the Republic of South Africa and the Parties hereby consent and submit to the jurisdiction of the Kwa-Zulu Natal High Court.
15.2 The Client consents to the jurisdiction of the Regional Court and the Magistrates Court in respect of any claim arising out of or pertaining to this Agreement or the services even though any claim the Client may have against the Client exceeds the monetary jurisdiction of the Regional Court or the Magistrates Court, as the case may be.
16 Interruption Event
16.1 The Client further acknowledges that from time to time there may be a suspension of the Service from causes beyond the control of Gavin Higgins Photography (due to natural events, conduct of third parties or otherwise).
16.2 An Interrupted Party shall be relieved of its obligations in terms of this Agreement during the period that the Interruption Event and its consequences continue, only to the extent so prevented, and shall not be liable for any Losses which the other Party may suffer as a result.
16.3 The Interrupted Party shall notify the other Party of an Interruption Event in writing as soon as it becomes reasonably aware of the Interruption Event as such.
16.4 In the event that an Interruption Event exceeds –
16.4.1 20 consecutive days and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, the Parties agree to meet and negotiate the suspension, termination or restructuring of this Agreement; or
16.4.2 3 consecutive months and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, either Party may terminate this Agreement and shall only remain liable for performance under this Agreement which fell due immediately prior to the Interruption Event.
17.1 The Client shall not be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of this Agreement except with Gavin Higgins Photography’s prior written consent, which consent will not be unreasonably withheld, provided that the Client shall be entitled, without Gavin Higgins Photography’s prior written consent, to cede, delegate or otherwise transfer all or any of its rights, interest or obligations under and/or in terms of this Agreement to any company which shall be the Client’s subsidiary or which shall be a subsidiary of the Client’s holding company (“the Cessionary”), it being recorded that, prior to such cession, delegation, assignment and/or transfer, the Client shall:
17.1.1 procure that the Cessionary shall bind itself as a Party to this Agreement, in the Client’s place and stead;
17.1.2 the Client shall bind itself in Gavin Higgins Photography’s favour as a surety for and co-principal debtor together with the Cessionary in respect of the due and punctual performance by the Cessionary of all of its obligations arising in terms of and/or in connection with this Agreement; and
17.1.3 in the event that the Cessionary shall cease being the Client’s subsidiary and/or a subsidiary of the Client’s holding company, the Cessionary shall, prior to the happening of such event, cede and delegate and/or transfer all of its rights, interests or obligations in terms of this Agreement to another company, mutatis mutandis on the same basis recorded in this clause, which shall then be the Client’s subsidiary or a subsidiary of the Client’s holding company.
17.2 Gavin Higgins Photography shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of this Agreement subject to Gavin Higgins Photography giving the Client written notice to that effect to the Client.
17.3 The Client may, on receipt of such notice, terminate this Agreement by giving Gavin Higgins Photography 1 month’s written notice.
18.1 If any clause or term of this agreement should be invalid, unenforceable or illegal, then the remaining terms and provisions of this agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this agreement.
19 Domicilium and Notices
The Client chooses its physical address; postal address; and email address detailed in the Invoice as its domicilium citandi et executandi (“domicilium”) for all purposes arising from or pursuant to this Agreement. Gavin Higgins Photography chooses its domicilium for all purposes arising from or pursuant to this Agreement as per address referred to in the invoice. –
19.1 Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a post box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Parties of such change.
19.2 All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being.
19.3 A notice sent by one Party to another Party shall be deemed to be received:
19.3.1 on the same day, if delivered by hand;
19.3.2 on the same day, if transmitted electronically with receipt received confirming completion of transmission;
19.3.3 on the same day of transmission if sent by telefax with receipt received confirming completion of transmission, provided that the original of the notice shall, after such transmission, be sent by prepaid courier services to the Party to whom such notice shall have been given;
19.3.4 on the third day after despatch, if sent by prepaid courier.
19.4 Notwithstanding anything to the contrary contained in this clause 19 a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
20.1 This document constitutes the sole record of the Agreement between the Parties in regard to the subject matter thereof.
20.2 No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded in this Agreement.
20.3 No addition to, variation or consensual cancellation of this Agreement, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.
20.4 No indulgence which any of the Parties (“the Grantor”) may grant to any other or others of them (“the Grantee(s)”) shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
20.5 The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement.
21 Interpreting This Agreement
21.1 This Agreement contains a number of words and phrases which have specific meanings and most of which are capitalised. The Glossary, below, contains many of these words and phrases (others are set out in this Agreement’s body and are designated by terms in quotation marks).
21.2 Gavin Higgins Photography also applies certain rules when interpreting this Agreement and the Interpretation Guide, which sets out these rules, is below.
21.3 Interpretation Guide
21.3.1 In this Agreement, headings are for convenience and are not intended to be used to interpret the Agreement.
21.3.2 If the Agreement refers to a party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Agreement will also be applicable to and binding on that party’s liquidator or trustee, as the case may be.
21.3.3 Unless this Agreement indicates to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
21.3.4 The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.
21.3.5 Where in this Agreement provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such Agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
21.3.6 The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
21.3.7 Where this Agreement specifies any number of days, the number of days excludes the first day and includes the last day unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
21.3.8 Any reference to “business hours” shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 17h00 (seventeen hours) on any Business Day. Any reference to time shall be based upon South African Standard Time;
21.3.9 All annexures, addenda and amendments to this Agreement form an integral part of this Agreement and, therefore, Gavin Higgins Photography’s contract with the Client.
21.4.1 The following words and phrases bear the meanings assigned to them below and related expressions bear corresponding meanings:
126.96.36.199 “the Act” means the Copyright Act (No. 98 of 1978), as amended from time to time;
188.8.131.52 “Agreement” means these terms and conditions and the Booking Forms, as amended from time to time;
184.108.40.206 “Booking Form” means the Booking Form set out above;
220.127.116.11 “Content” means content which Gavin Higgins Photography has agreed to produce in the course of rendering the Services including, but not limited to, photographs and video footage;
18.104.22.168 “Content License” means a personal, nonexclusive, non-commercial, fully-paid, royalty free, non-transferrable and worldwide license to use, modify, delete from, add to, publicly display, reproduce, distribute the Content;
22.214.171.124 “Client” means the person or legal entity identified as the Client in the Booking Form;
126.96.36.199 “External Service Providers” means service providers operating independently of Gavin Higgins Photography;
188.8.131.52 “Fees” means Gavin Higgins Photography’s fees and disbursements referred to in clause 10 above;
184.108.40.206 “Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
220.127.116.11 “Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of an Interruption Event;
18.104.22.168 “Gavin Higgins Photography” means Gavin Higgins trading as Gavin Higgins Photography;
22.214.171.124 “Gavin Higgins Photography’s Associates” means Gavin Higgins Photography’s officers, servants, agents or contractors or other persons in respect of whose actions Gavin Higgins Photography may be held to be vicariously liable;
126.96.36.199 “Losses” means all losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own Client, tracing and collection charges, costs of investigation, interest and penalties);
188.8.131.52 “Outsourced Services” means Services which are outsourced to and rendered by External Service Providers on Gavin Higgins Photography’s instructions;
184.108.40.206 “Parties” means Gavin Higgins Photography and the Client (“Party” has a corresponding meaning);
220.127.116.11 “Republic of South Africa” means the Republic of South Africa as constituted on the Signature Date;
18.104.22.168 “Services” means the Services to be rendered by Gavin Higgins Photography to the Client as described in clause 5 above which shall include, but are not limited to, the Shoot;
22.214.171.124 “Shoot” means the photo shoot during the course of which Gavin Higgins Photography will take photographs of the Client and/or such other subjects as the Client may specify in the Booking Form or otherwise in writing;
126.96.36.199 “Signature Date” means the date of signature of this Agreement by the last signing of its signatories;
188.8.131.52 “Website” means Gavin Higgins Photography’s website located at www.gavinhigginsphotography.com .