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Terms and Conditions
1.Terms and Conditions. These Terms and Conditions constitute the agreement ("Agreement") between Barking Monkey Studio ("we," "us" or "Photographer") and the user ("you", "licensee", or "Client") of photography services and any related services or provided by us (collectively, the "Service").
2.Currency. Unless otherwise noted, all amounts referenced in this estimate are payable in Canadian dollars.
3.Terms of Payment. Unless otherwise noted, all amounts are due and payable within 7 days of the date of the applicable invoice. Overdue amounts are subject to interest at a rate of 24% per annum, calculated and compounded monthly.
4.Cancellation Fees / Overruns. If a booking is cancelled by the Client within one working day of the starting time, the Photographer reserves the right to charge his full fee plus taxes and expenses for the assignment. If a booking is cancelled within two working days of the starting time, the Photographer may charge 75% of his fee plus taxes and expenses. If a booking is cancelled within or more than 3 working days of the starting time, the Photographer may charge 50% of his fee plus taxes and expenses. For cancellations or postponements due to weather conditions, the Photographer reserves the right to charge his full fee plus taxes and expenses. Expenses may include, without limitation, costs for travel, equipment, props, model fees, long-distance charges, printing, courier and other expenses.
5.Additional Charges. The Photographer may make additional charges should the scope of an assignment change at the Client`s request or otherwise be beyond the control of the Photographer ( e.g. including but not limited to; the Client requesting additional photographs over and above the Client's original brief etc).
6.Third Party Approvals / Releases. Client is responsible, at its expense, for obtaining all necessary approvals, releases or waivers, including, without limitation, releases from all models used or otherwise engaged to participate in the subject session, as may be required to facilitate the performance of the Service. If no Client representative is onsite, image approval is at photographers discretion.
7.Ownership of Photographs. All original negatives, transparencies, digital files, prints and images, or any part thereof, (collectively, the ``Photos``) used or created by the Photographer in connection with the Service remain the property of the Photographer. The Photographer reserves the right to make reproductions of images created during assignments for marketing, promotional, competition and editorial purposes without compensation of any kind to the Client.
8.License. You are not being granted any license to use the Photos, other than a non-transferable, revocable license to use the Photos (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. Said license shall be deemed to terminate immediately if payment for the Service is not made on the date required herein. In such case, or at any other time upon the request of the Photographer, the Client will promptly deliver to the Photographer all of the Photos received by Client, including all copies and reproductions thereof or based thereon.
9.Intellectual Property. Client acknowledges that Photographer is the owner of all copy-right, trade-marks and all other intellectual property rights, including so called moral rights (droits moral) (collectively the “Photographer IP Rights”) associated with the Photos, and, except as otherwise expressly permitted by this Agreement, Client shall not at any time do or suffer to be done any act or thing that will in any way impair the rights of Photographer in and to Photographer IP Rights. Nothing in this Agreement grants, nor shall Client acquire hereby, any right, title or interest in or to Photographer IP Rights or any goodwill associated with Photographer IP Rights, other than those rights expressly granted hereunder.
10.Limitation of Liability. Photographer`s aggregate liability under this agreement will in no event exceed the fees and expenses charged by the Photographer for the Service. IN NO EVENT WILL THE PHOTOGRAPHER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY OR CONDITION, PRODUCT LIABILITY, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT, STRICT LIABILITY, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. FOR GREATER CERTAINTY AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PHOTOGRAPHER AND ITS REPRESENTATIVES SHALL NOT BE HELD ACCOUNTABLE FOR ANY UNFORESEEN DELAYS IN THE ORDER(S), COLOUR FADING OF PRINTS OVER TIME, COLOUR BALANCE PROBLEMS WITH DIGITAL FILES OR IMAGES DUE TO IMPROPER INADEQUATE LIGHTING AT THE LOCATION THAT IS BEYOND THE CONTROL OF THE PHOTOGRAPHER, GRAINY FILES CAUSED BY HAVING TO SHOOT IN CIRCUMSTANCES WHERE THERE IS INADEQUATE LIGHTING AND WHEN FLASH PHOTOGRAPHY IS NOT ALLOWED OR PROHIBITED, LAB MISTAKES OR MISSED SHOTS.
11.Delivery of Products and Services. The supply of products and services are provided by the Photographer on a reasonable efforts basis. The Photographer will not be liable for delays that are beyond his reasonable control. The Photographer shall use reasonable efforts to meet agreed deadlines where applicable. The Photographer shall not be liable for any delays in meeting any of his obligations which were due to causes beyond his reasonable control including but not limited to; postage/courier/lab delays, war/acts of terrorism, riots, government legislation, industrial action, adverse weather conditions, technical problems, acts of God, floods, fire, loss or damage in transit etc.
12.Sizes and Colour Matching. Whilst every effort is made to meet the Client's requirements, all sizes quoted by the Photographer are approximate. The Client must inform the Photographer on occasions where accurate sizing is critical.
13. Barking Monkey Studio reserves the right to substitute photographers if required
14. If cancelling this Contract, the Client must notify the Photographer in writing along with payment of the cancellation fee calculated from the date the written notice was received by the photographer
15.Warranty. To the extent permitted by applicable law, the Photographer MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, REASONABLY ACCEPTABLE QUALITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY OR CONDITION THAT THE SERVICE WILL MEET CLIENT'S REQUIREMENTS.
16.Entire Agreement. This Agreement constitutes the entire agreement between you and the Photographer and governs the use of the Service by you. This Agreement supersedes any prior agreements between you and the Photographer and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. The licensee acknowledges having read and understood all terms and conditions contained in these terms and conditions
17.Governing Law. The validity, performance and construction of this estimate shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein.