This is a legally binding agreement between Edward Barraclough / 4thwall.imaging and you. You have engaged the photography services of 4thwall.imaging based on the terms below. These terms were voluntarily agreed to by you and 4thwall.imaging and will be the terms and conditions that apply on each occasion 4thwall.imaging provide photography services to you, unless the Agreement has come to an end.
1.Photography Services & Payment:
1.1 You acknowledge that 4thwall.imaging is qualified and licensed to provide the photography services to you. These services may include the operation and use of low flying Civil Unmanned Aircraft Systems (“Drones”) operated by 4thwall.imaging.
1.2 In providing the services to you 4thwall.imaging has agreed to operate necessary Drones to complete the services and will maintain all relevant and applicable licenses as required by Australian law, to operate such Drones.
1.3 4thwall.imaging will provide photography services to you, as and when required, for the fee provided to you in any quotation (in writing or orally) provided to you by 4thwall.imaging. That quote will form part of the terms and conditions of this Agreement and will reflect the service rates and fees disclosed by 4thwall.imaging, which may change from time to time.
1.4 If you expressly communicate (by your words or conduct) that you agree with any quotation for services and/or agree for 4thwall.imaging to provide the services, you will be communicating your acceptance of the quote and will be required to pay for 4thwall.imaging services.
1.5 You agree that 4thwall.imaging is entitled to request payment of a deposit of 40% for any quotation that exceeds $1,000.00. That deposit must be paid to 4thwall.imaging within 5 days prior to performing the services. Any request for a deposit will be set out in 4thwall.imaging quotation provided to you for the services.
1.6 If 4thwall.imaging incurs additional costs in performing the services, those fees will be included in the quotation for services provided to you; or, if incurred unexpectedly, 4thwall.imaging will be required to include these in a final Tax Invoice. These costs may include parking fees, traveling costs outside Victoria, postage, accommodation, entry permit/consent fees, council charges and hire fees.
1.7 You acknowledge that in providing the services 4thwall.imaging may require access to several airways, aerodrome pathways or other airspace (within and external to Australian territory); in addition to public/private premises, landmarks or other areas requiring access. You undertake and agree to reimburse 4thwall.imaging for costs in obtaining any additional relevant licences, permits and consents.
1.8 You acknowledge that 4thwall.imaging will not be responsible or liable for any delays in obtaining such consents/permits. 4thwall.imaging may refuse to provide the services until such time as the relevant consents/permits have been granted and you will extend the timeframe for completion of services if necessary, to obtain the relevant consent/permit.
1.9 Upon completion of the services, 4thwall.imaging will issue you with a Tax Invoice and will require payment of that invoice within 14 days. If you fail to pay by the due date, 4thwall.imaging can stop performing the services, withhold photographs and/or charge interest at 7% per annum (calculated daily) for all late payments
1.10 You are aware that 4thwall.imaging services may be restricted to the availability of premises, tools/equipment, staff or agents; or might be interrupted by unpredictable events such as weather. Where possible, all reasonable steps will be taken by 4thwall.imaging to provide the services within the timeframe agreed; and you agree not to hold 4thwall.imaging liable and to indemnify 4thwall.imaging, for any such delay.
2.Delivery of Photographs:
2.1 4thwall.imaging will attempt, but does not warrant, to deliver edited photographs (in printable size of a maximum 5MB) to you within a reasonable timeframe via Dropbox or USB delivered to your postal address (Postage fees apply as set by Australia Post).
2.2 If you are not satisfied with the photographs, you must notify 4thwall.imaging within 48 hours from receipt to enable 4thwall.imaging to re-perform the services (if required and where reasonably possible). Any alterations required to be made after that period, will be made as though the services were being performed a second time and you will be charged a further charge consistent with the rates provided in the relevant quotation for services and/or as per 4thwall.imaging website (as applicable).
3.Subcontractors:
3.1 You acknowledge that 4thwall.imaging is an independent contractor, fit and qualified to perform the photography services, and is not your employee, agent or assignee.
3.2 You acknowledge and agree that 4thwall.imaging may, from time to time, use the services of a subcontractor. 4thwall.imaging subcontractors will be instructed to produce the same standard of services as would be expected from 4thwall.imaging under this Agreement.
4.Intellectual Property:
You and 4thwall.imaging agree that this clause 4 will continue even after this Agreement comes to an end:
4.1 You acknowledge that 4thwall.imaging is the author of the photographs supplied to you under this Agreement, being the subject of Copyright under Australian Copyright Law. As author, 4thwall.imaging retains the right to use the photographs for purposes connected to 4thwall.imaging business, including for advertisement and/or promotion.
4.2 As 4thwall.imaging customer, you are entitled to use the photographs for the purpose set out in any quotation provided to you by 4thwall.imaging. You agree to acknowledge 4thwall.imaging as the author of those photographs, where possible: eg Print media /Social media platforms.
4.3 You agree to obtain 4thwall.imaging consent (in writing) if you: use the photographs for any other purpose not contained in any quotation; and/or if you wish to distribute the photographs to other persons, including to the proprietor of any property. In each of these circumstances 4thwall.imaging is entitled to charge an additional fee for the use of the photographs.
5.Obligations:
5.1 You agree to 4thwall.imaging ‘Customer Obligations’, being that you:
5.1.1 co-operate with 4thwall.imaging and make available necessary facilities required by 4thwall.imaging;
5.1.2 provide information and documentation that 4thwall.imaging reasonably requires for the services;
5.1.3 ensure 4thwall.imaging has unfettered legal access to any premises required to perform the services and have obtained authority/permission for E4thwall.imaging to access, enter and use the premises.
5.1.4 ensure 4thwall.imaging has permission to photograph the subject(s) (including persons, buildings, land, landmarks and/or structures), which may involve obtaining a signed “Model Release” from the participant and/or release from copyright where applicable; and
5.1.5 ensure that your staff and agents cooperate with and assist 4thwall.imaging.
5.2 You and 4thwall.imaging will agree to uphold all relevant laws applicable to this Agreement including the provisions of the Civil Aviation Act 1988 and obtain necessary insurances. Each party will indemnify the other if they fail to uphold these obligations, laws and/or obtain necessary insurances.
5.3 Where 4thwall.imaging uses Drones owned and sourced by 4thwall.imaging, 4thwall.imaging agrees to ensure any Drones used in the performance of the services are registered as required under the Civil Aviation Act 1988 and under relevant Australian law. If you require 4thwall.imaging to use other Drones (or associated equipment) to perform the services, you will be required to ensure the Drones you supply are registered under that same Act and at law. You will indemnify Elev8 for any damage or loss as a result of your failure to ensure that the Drones sourced by you have satisfied necessary registration requirements, standards and specifications at law and by the Civil Aviation Safety Authority (“CASA”).
6.Limited Liability & Indemnity:
You and 4thwall.imaging agree that this clause 6 will continue even after this Agreement comes to an end.
6.1 If E4thwall.imaging has been found negligent in providing the services (except where death or personal injury has resulted), 4thwall.imaging liability is limited to the fees paid by you for the services.
6.2 4thwall.imaging will not be liable for any: interruption, delay or interference to the services beyond 4thwall.imaging reasonable control; or any damage/loss resulting from your conduct, information or instructions, and you agree to indemnify 4thwall.imaging for same.
6.3 If in the circumstance you request that 4thwall.imaging perform the services and 4thwall.imaging has advised you that (for reasons beyond their control such as fire, flood, wind or storm), it would be unsafe or detrimental to any person or property to perform the services, and you continue to request that 4thwall.imaging perform the services, you agree to indemnify 4thwall.imaging for any damage to property (including 4thwall.imaging property) and/or injury suffered by 4thwall.imaging or any other person.
6.4 In circumstances where you have supplied 4thwall.imaging with the Drones (or other equipment) to be used to perform the services, you wholly indemnify 4thwall.imaging for the functionality, maintenance and operation of that Drone(s); and acknowledge that you are wholly liable for any damage or loss arising out of or as a result of the Drone’s malfunction, failure or defect (however slight). You agree that where you provide Drone(s) for use to 4thwall.imaging, you are required to satisfy conditions imposed under CASA and at law for the maintenance, registration and operation of that Drone.
6.5 Neither party will be liable to the other for damage/loss suffered which is of an indirect or consequential nature.
7.Termination:
Either party can terminate this Agreement by giving 21 days’ written notice to the other party. If you terminate this Agreement, you agree to make payment of all outstanding fees and/or payment of services partly performed prior to termination. Termination may occur in circumstances including: if either party breaches this Agreement and fails to rectify the breach in 7 days; or if a party becomes insolvent/bankrupt at law.
8.Operation of Agreement:
8.1 You agree not transfer or assign your rights/obligations under this Agreement unless you provide written notice to 4thwall.imaging (by post or email) and 4thwall.imaging has accepted the transfer/assignment, in addition to the new party agreeing (in writing) to be bound by these terms.
8.2 Both parties agree to adopt best efforts to resolve any disputes that may arise.
8.3 Where a provision of this Agreement is void/unenforceable, then it will be removed and the balance of the Agreement will be binding.
8.4 This Agreement is the entire Agreement, in addition to any quotation provided to you and 4thwall.imaging Customer Obligations. You agree that you can not rely on any other representation(s).
8.5 The parties acknowledge that the Agreement is governed by the laws of Victoria and submit to the non-exclusive jurisdiction of that State.