Heartstory Family Portrait Photography Terms & Conditions
These Terms & Conditions govern the relationship between the Parties.
Twice Creative Pty Ltd t/as Heartstory (ABN 73600217356) of Unit 104, Level 1, 17 Market Street, Belconnen ACT 2617 (‘Heartstory”) specialises in professional family portrait photography. You have engaged Heartstory to provide the Services.
By continuing to work with Heartstory after receiving these Terms & Conditions, you accept the Terms & Conditions and agree to the below.
When engaging Heartstory You are committing to the Portrait Experience which includes a phone consultation, your photography session, and a purchasing appointment. There are customisable options within the Portrait Experience to suit your individual needs and preferences, and these can be explored on the website at https://heartstoryphotography.com.au.
You are the Client and your details, including your name, and contact details, are those set out in the Booking Confirmation Form that you have provided when making the initial booking.
1. The Engagement
1.1 Heartstory agrees to perform the Services for You, for the Fees, on the Dates to be agreed as set out in Schedule 1.
1.2 If You make a weather-permitting booking (any outdoor booking) You acknowledge and agree that this booking will be subject to the wet-weather clause at 11.6 below.
1.3 Heartstory undertakes to complete the Services and provide the Portrait Collection and Photographic Artwork that you order by the Completion date as set out in Schedule 1.
1.4 You are required to obtain any permits or permissions that may be applicable, from time to time, from any government or other body, to enable attendance upon or at any venue including parks or other venue as required by You.
2. Fees and payment
2.1 There are two types of fees that may apply to your booking:
(a) Sitting Fee: payable upon booking and covers your experience, not including prints, files and other artwork;
(b) Fees for the prints and products you choose to order: payable upon ordering your prints and products at your Purchasing Appointment.
2.2 You agree to pay Heartstory the Fees as set out in Item 5 of Schedule 1, and other fees as agreed between the parties.
2.3 Payment Plans are available for print and product orders with Fees over $1000. The maximum period of time for the Payment Plan is 6 months and Payment Plan Instalments are to be agreed with Heartstory upon placing an order for the Portrait Collection and Photographic Artwork.
2.4 Membership subscriptions run for 12 months and when you subscribe, you agree to the terms in Item 7 of Schedule 1.
2.5 The Fees for the prints and products supplied by Heartstory may be adjusted from time to time by Heartstory.
2.6 You agree to make Payment of the Fees pursuant to Item 6 of Schedule 1.
2.7 You agree to make Payment of the Fees by the method prescribed in Item 8 of Schedule 1.
2.8 Unless otherwise stated, all amounts are listed in Australian Dollars (AUD) and are GST inclusive.
2.9 In the event that any payment is not made in full on the due date, Heartstory will cancel Your booking. If You are making payment by a payment plan, in the event that a payment is not made as and when it is due, Heartstory is entitled to charge you a late fee of $10.
3. Purchase of digital files
3.1 High resolution digital files are available for You to purchase from Heartstory.
3.2 Copyright in the high resolution digital files is retained by Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes. Heartstory, and its photographers Katie Kolenberg and Jeremy Byrnes, grant You a limited release by way of a personal use only licence to make cards, photobooks, prints, wall art etc, provided You do not alter the images in any way, other than cropping for specific sizes. You may also load digital files onto Facebook, and share electronically, but You must use the web sized images provided on Your USB and You must leave the watermark intact.
3.3 High resolution digital files must not be published or distributed in any other way without the express written consent of Heartstory. This includes media, any other commercial use and competitions. If You purchase high resolution digital files, You will be provided with a document detailing the terms and conditions of their usage.
4. Producing your order
4.1 Your order will go into production until full payment is received from You.
4.2 It is Your responsibility to check that Your order is correct. Once Your order is in production it cannot be changed. Due to the nature of custom photography and personalised products, prints and products cannot be returned unless they are found to be faulty.
4.3 Prints and wall art will be ready 3-6 weeks after Your payment is received. Some items such as fine art books can take up to 8 weeks. When Your order is ready, we will SMS You to arrange a pick up time for You.
5. Copyright
5.1 You recognise and acknowledge that all copyright in relation to the Services, Portrait Collection and Photographic Artwork is the property of Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes and You will take all such steps as practicable to ensure that the copyright will vest in and remain vested in Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes.
5.2 Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes grants to You a non-exclusive, non-transferable, royalty-free, perpetual licence to use the copyright owned by Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes, in relation to the Portrait Collection and Photographic Artwork.
5.3 You hereby indemnify and agree to keep indemnified Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes against all liability, losses or expenses incurred by Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes, including damage to Heartstory’s reputation and the reputations of Heartstory’s photographers Katie Kolenberg and Jeremy Byrnes, in relation to or in any way directly or indirectly connected with any breach of copyright by You or your agents.
6. Moral rights
6.1 Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes will always ask You if You are happy for them to use images prepared for You for their own marketing purposes. You will always have the option to provide instructions as to how any photos are to be used in the model release form supplied to you, and this will be discussed with You at the conclusion of your experience with Heartstory.
6.2 Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes assert moral rights, including attribution rights, in respect of the Portrait Collection and Photographic Artwork. Heartstory and its photographers Katie Kolenberg and Jeremy Byrnes request that each use of any Portrait Collection and Photographic Artwork by You, including on social media, be accompanied by an adjacent credit line acknowledging Heartstory’s name and copyright in the Portrait Collection and Photographic Artwork, unless otherwise agreed in writing.
6.3 You may not add filters to or edit the images in the Portrait Collection and Photographic Artwork for use by you, including on social media.
6.4 You must not supply images from the Portrait Collection and Photographic Artwork to other businesses or individuals for their use. Anyone else wishing to use images from the Portrait Collection and Photographic Artwork must be referred to Heartstory.
7. Storage, display and backup
7.1 You acknowledge You are responsible for the storage and backup of the Portrait Collection and Photographic Artwork supplied by Heartstory. While Heartstory will follow usual back up procedures upon delivery of the Portrait Collection and Photographic Artwork, Heartstory shall not be liable under any circumstances if unable to produce the backups or future reproductions of the Portrait Collection and Photographic Artwork upon a request by You. Where backups are available, these may be made available to You for a fee to be agreed.
7.2 Handling, storage and maintenance of prints and products ordered by You is Your responsibility. Heartstory shall not be liable for any damage incurred as a result of improper handling, framing or hanging or any damage from exposure to sun or moisture.
7.3 Portrait Collection and Photographic Artwork are available for re-order and purchase for 12 months following provision of the Services. If your original order was less than $1000, You will only have access to reorder images that You have already ordered. Re-orders are subject to the prices current at the time. If your original order is less than $1000, only the images you order will be kept on file, and the rest will be deleted.
8. Editing, retouching and printing of images
8.1 All images in your Portrait Collection and Photographic Artwork will be edited and retouched (adjusted for colour, tone, contrast etc) according to Heartstory’s signature style. This work is carried out as part of your Portrait Experience.
8.2 Any images that are ordered and printed may receive additional retouching which can include skin softening and removal of blemishes, depending on your wishes. Retouching of this kind is not undertaken on your complete digital file collection. If You require retouching of this kind on your complete digital file collection Heartstory will charge an additional fee of $50 per hour.
8.3 Heartstory is able to offer additional retouching services over and above what’s already been describe where requested. If such work is required this will be subject to an additional charge of $50 per hour.
8.4 If Your Portrait Collection includes printed artwork or albums, You may notice a colour difference between what You view on Your electronic devices and what appears on Your printed images. If You print images from your Portrait Collection yourself, they may appear differently to Heartstory prints. This is because of different screen quality and calibration of screens and printers. Heartstory equipment is calibrated to match its professional printing lab profile and Heartstory recommends printing through Heartstory. Heartstory is not responsible for how images from Your Portrait Collection appear when printed at home or through consumer labs.
9. Privacy and personal information
As part of creating the Portrait Collection and Photographic Artwork Heartstory may collect and retain personal information about You. Any personal information will be obtained, retained and used in accordance with Heartstory’s Privacy Policy which can be found on the Heartstory’s website www.heartstoryphotography.com.au.
10. Termination
10.1 For Heartstory
(a) Heartstory may terminate the engagement with You for any breach of these Terms & Conditions by You, by providing 7 days written notice to You by email. At Heartstory’s discretion, Heartstory may allow You to remedy the breach within 3 days notice, or another time-frame as agreed, and in being satisfied with the remedy of the breach by You, Heartstory may choose not to terminate the engagement.
(b) If Heartstory terminates the Engagement You will pay Heartstory for the portion of the Services completed up to the date and time of termination.
10.2 For You
(a) You may terminate the engagement for a breach by Heartstory of these Terms & Conditions by providing 7 days written notice of the breach to Heartstory. During the 7 day notice period, Heartstory reserves the right to remedy the breach. If Heartstory remedies the breach which was the cause of the notice, the Engagement will not be terminated.
(b) If You provide notice of intent to terminate the Engagement, You will pay for the work which has been carried out up to the time the Engagement is terminated, including all Job Related Costs.
(c) If you terminate the engagement within less than 7 days notice, and for reasons other than a breach by Heartstory, you must pay to Heartstory 100% of the Fees.
11. Rescheduling or cancellation
11.1 When entering into these Terms & Conditions, and upon payment of the Sitting Fee You become liable to Heartstory for the Fees, and Heartstory becomes liable to You for the Services.
11.2 The Services can be rescheduled once to another date due to illness or other emergency or for any other reason, subject to Heartstory’s availability. Requests to reschedule the Services to another date for any reason other than illness or other emergency must be made 14 days prior to a Photography Session and 7 days prior to a Purchasing Appointment.
11.3 If You reschedule the Services more than once or do not provide the notice referred to in clause 11.2, Heartstory will charge You a cancellation fee of $100 and You agree to pay this.
11.4 Any requests to cancel the Services must be made in writing and must provide at least 14 days’ notice. The Sitting Fee is refundable if You cancel the Services in writing and provide at least 14 days’ notice to the Photography Session booking date.
11.5 Heartstory requires any rescheduled sessions or appointments to be finalised within 7 days of the original booking (regardless of when the new session or appointment will take place). Heartstory does not allow rescheduled sessions or appointments to be left ‘pending’, unless there are extenuating circumstances. If You do not finalise a rescheduled session or appointment within 7 days from request, Heartstory reserves the right to charge a cancellation fee of $100.
11.6 If You make a booking for an outdoor session of any kind You agree that You will comply with Heartstory’s inclement weather and rescheduling policy as follows:
(a) You cannot request rescheduling of your outdoor session based on an advance weather forecast.
(b) You will allow Heartstory to take a decision to reschedule Your outdoor session on the day of (or if necessary, the day before) the outdoor session.
(c ) You agree that the definition of inclement weather is persistent or heavy rain, hail, uncharacteristic extreme temperature for the season, gale force wind or electrical storms.
(d) Heartstory do not reschedule outdoor sessions because it is hot, cold, frosty, foggy, cloudy, or where it has been raining prior to Your booking start time.
(e) If Your outdoor session can’t take place outdoors due to inclement weather, the first option Heartstory will offer is to move to the Heartstory Studio in Belconnen. If your group is too big or otherwise unsuitable for the studio (at Heartstory’s discretion), Heartstory will attempt to find a suitable undercover outdoors location. If this is not suitable (at Heartstory’s discretion), Heartstory will reschedule your session to another time and date (see f below).
(f) If Your outdoor session needs to be rescheduled due to inclement weather, the rescheduled outdoor session must take place within 2 weeks of your original booking, unless there are extenuating circumstances. You agree to be flexible in this circumstance.
(g) Heartstory reserves the right to change its inclement weather and rescheduling policy and will communicate any changes to You.
11.7 If you do not show up (no show) for a booking (session or purchasing appointment) without prior communication, Heartstory reserves the right to charge a cancellation fee of $100, and may cancel your booking altogether. By not showing up, you forfeit any print credit, prizes or gift vouchers that may have applied to your booking.
12. Indemnity
You agree to indemnify Heartstory for any loss, claim, damage or expense (including costs incurred on a solicitor client basis) suffered or incurred as a result of: (a) Any breach by You of these Terms & Conditions; (b) Any infringement of copyright of any person; or (c) Steps taken by Heartstory to recover unpaid money under these Terms & Conditions.
13. Release
13.1 You agree to release Heartstory from any and all liability relating to colour reproduction of supplied works on any system not under the direct control of Heartstory. Where Heartstory supplies You with photographic prints, You acknowledge that the Portrait Collection and Photographic Artwork may fade or discolour over time due to the inherent qualities of materials used or environmental factors, and You agree to release Heartstory from any liability for any claim based upon fading or discolouration. Where a colour is unable to be reproduced accurately due to limitations in capture and output technology, You release Heartstory from any and all liability.
13.2 Except as provided by under Australian Consumer Law, Heartstory shall not be liable for any loss or damage arising by reason of any delay in the completion of the Services, or provision of the Portrait Collection and Photographic Artwork; any loss of profit or revenue; any indirect or consequential loss or whatever nature; or any loss resulting from any errors or omissions arising from an oversight or misunderstanding of instructions provided by You.
14. Force Majeure
14.1 If circumstances beyond Heartstory’s control prevent or hinder its provision of the Services, Heartstory is free from any obligation to provide the Services while those circumstances continue. Heartstory may elect to terminate this Agreement or keep the Agreement on foot until such circumstances have ceased.
14.2 Circumstances beyond Heartstory’s control include, but are not limited to, shortage of labour, pandemics, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, failures or malfunctions of computers or other information technology systems.
15. Use of images permission form
15.1 Heartstory requests that written consent be in the form of the Use of Images Permission Form contained at Schedule 2.
15.2 Upon request by Heartstory, you will provide to Heartstory copies of all permission forms signed by the relevant persons.
15.3 You agree to fully indemnify Heartstory from all claims, suits and demands, and in respect of any and all costs incurred by Heartstory, arising from your failure to obtain signed permission forms from all persons included in the photoshoot.
16. During the photography session
16.1 If required attendees fail to present themselves in a timely manner to enable Heartstory to complete the photography session as planned with You, Heartstory will not be held liable for any inability or failure to capture images which include such attendees.
16.2 Heartstory aims to capture a wide variety of images according to their signature style during the photography session and this includes any specific request or wish by You, however, Heartstory cannot guarantee that any specific image requested by You will be captured during the photoshoot. Heartstory will not be held liable for any inability or failure to capture specific images requested by You.
16.3 Heartstory is not obligated to provide the Services if the personal safety or well-being of Heartstory photographers is or will be compromised or threatened including, but not limited to, as a result of the condition of the location or venue, or by the conduct of an attendee.
17. General matters
17.1 Communication between Parties
The parties agree to communication by email, via the email addresses contained at Item 8 of Schedule 1. SMS will also be used for reminders and follow ups as required.
17.2 Confidential Information
(a) You must advise Heartstory in writing (including by email) if any material of information provided to Heartstory is of a confidential nature. Heartstory will keep that material or information confidential, except where disclosure is reasonably necessary to enable Heartstory to perform the Services.
(b) All obligations of confidence set out in these Terms & Conditions continue in full force and effect after the Completion Date.
17.3 No partnership or agency
Nothing contained or implied in these Terms & Conditions will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
17.4 Governing Law & Jurisdiction
(a) These Terms & Conditions are governed by the laws of the Australian Capital Territory.
(b) In the event of any dispute arising out of or in relation to the Services, You agree that the exclusive venue for resolving any dispute shall be in the courts of the Australian Capital Territory.
17.5 Dispute Resolution & Mediation
(a) If a dispute arises out of or relates to the terms of these Terms & Conditions, either party must not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(b) A party to these Terms & Conditions claiming a dispute (the ‘Dispute’) has arisen under the terms of these Terms & Conditions, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the ‘Notice’). Such written notice must be provided as soon as reasonably practicable after the dispute arises.
(c) On receipt of the Notice by the other party, the parties to these Terms & Conditions (the ‘Parties’) must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
(d) If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by Independent Third Party as agreed or his or her nominee and attend a mediation.
(e) It is agreed that mediation will be held in the Australian Capital Territory, unless alternative arrangements are agreed between the Parties.
(f) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
(g) All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.
(h) In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute.
17.6 Severance
Any provision of these Terms & Conditions which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of these Terms & Conditions or affecting the validity or enforceability of such provisions in any other jurisdiction.
17.7 Assignment
Heartstory does not agree for You to delegate, assign, novate and/or subcontract any obligations pursuant to these Terms & Conditions to any person without the Heartstory’s consent.
17.8 Entire Agreement and Modifications
Both You and Heartstory confirm and acknowledge that:
i. These Terms & Conditions shall constitute the entire agreement between the parties and shall supersede and override all previous communications, either oral or written, between the parties;
ii. No agreement or understanding varying or extending these Terms & Conditions shall be binding upon any party unless arising out of the specific provisions of these Terms & Conditions; and
iii. If for whatever reason there is inconsistency between these Terms & Conditions and any other agreement, these Terms & Conditions shall prevail.
SCHEDULE 1
1.
Commencement date
The date you complete and submit the booking confirmation form.
2.
Completion date
Upon collection of final artwork.
3.
Services
Phone consultation
Photography Session(s) (as outlined in the Booking Confirmation Form)
Purchasing Appointment
Prints, products and photographic artwork is agreed on and charged separately.
4.
Delivery of services/session dates
Photography Session date and time set out on the Booking Confirmation Form.
Purchasing appointment date and time to be booked following the Photography Session.
5.
Fees
The Sitting Fee (if applicable) as set out in the email with your Booking Confirmation Form.
Fees for prints, products and photographic artwork will be confirmed at the purchasing appointment after your selection.
Pricing of prints, products and photographic artwork including packages is available on the Heartstory website.
6.
Payment terms
The Sitting Fee is paid on or before the Booking Confirmation Form is completed.
At the completion of your Purchasing Appointment You will either pay in full for your order, OR, enter into a payment plan to be agreed with Heartstory.
Payment plans are available for orders of Photographic Artwork over $1000. A 25% deposit is required to be paid immediately upon placing an order for the Portrait Collection and Photographic Artwork.
The maximum period of time for the Payment Plan is 6 months and Payment Plan Instalments are to be agreed with Heartstory upon placing an order for the Portrait Collection and Photographic Artwork.
Payment of a Payment Plan Instalment 7 days after the agreed instalment date will incur a fee of $10.
If you need to change or vary your instalments, please contact us in advance of the due date.
If you decide to discontinue your payment plan, monies paid are not refundable.
You will be sent a courtesy reminder if you are up to 7 days late with an instalment. If not paid within 24 hours of the reminder, you a late fee of $10 will be added to your order.
Your Photographic Artwork order will not be produced until payment is made in full.
7.
Payment terms – membership subscription
Membership subscriptions run for 12 months and have set inclusions, such as a credit towards Photographic Artwork.
Payment terms for membership subscriptions are processed automatically by credit/debit card on a set renewal date each month for the term of the membership via Stripe payment gateway, and this cannot be altered once the subscription has commenced.
If you need to change the card attached to your subscription, please contact us in advance of the renewal date.
If your scheduled auto-payments fails, you will be liable for fees associated with that.
If you cancel your membership subscription, monies paid are not refundable, and if we have already produced your order you are liable for the remaining balance.
8.
Method of payment
Cash. Direct Deposit. Debit card or credit card.
AMEX is not accepted
Payment plan instalments are paid by direct debit on the agreed instalment dates.
Payment terms for membership subscriptions are processed automatically by credit/debit card on one day each month for the term of the membership via Stripe payment gateway.
9.
Email addresses of parties
Heartstory: hello@heartstoryphotography.com.au
You: as per the details provided in the Booking Confirmation Form.
10.
Portrait collection and photographic artwork
The Portrait Collection is the collection of images we will produce for you following your photography session, which you will view at your Purchasing Appointment. Photographic Artwork is the prints and products You select and order at the Purchasing Appointment, and may include prints, digital files, wall art, albums and other packages.
11.
Parties
Heartstory: Unit 104, Level 1, 17 Market Street, Belconnen ACT 2617
You: as per the details provided in the Booking Confirmation Form.
SCHEDULE 2
USE OF IMAGES PERMISSION FORM
Heartstory seeks your permission to use images from your portrait shoot in web and print form for advertising, trade, education, publication and professional photography awards and competitions. We request the absolute and irrevocable right and unrestricted permission to use your visual image and/or the visual image of your child/ren, in the photograph(s) taken by Heartstory, in any form and media for advertising, trade, and any other lawful purposes. By granting us permission to use your images, you are hereby releasing and discharging Heartstory and their agents, representatives, and assignees, from any and all claims and demands arising out of or in connection with the use of the photographs.
You may decide whether or not to grant Heartstory this permission and if there are any specific rules you’d like us to follow. We will ask you to decide and sign off on this at end of your Purchasing Appointment.
