Terms & Conditions
FAMILY PORTRAIT PHOTOGRAPHY
TERMS & CONDITIONS
These Terms & Conditions govern the relationship between the Parties.
Windywillow Pty Ltd t/as Don Shiel Photography (ABN 82 088 688 751) of 33 Agostini Cct Oran Park NSW 2570.
Don Shiel Photography specialises in professional family portrait photography. You have engaged Don Shiel Photography to provide the Services.
By continuing to work with Don Shiel Photography after receiving these Terms & Conditions, You accept them and agree to the below.
When engaging Don Shiel Photography, You are committing to the Portrait Experience, which includes a phone consultation, photography session, and purchasing appointment. The Portrait Experience offers customisable options to suit your individual needs and preferences, which can be explored on the website at https://www.donshielphotography.com.au.
You are the Client, and your details, including your name and contact details, are in the Booking Confirmation Form You provided when making the initial booking.
1.1 Don Shiel Photography agrees to perform the Services for You for the Fees on the Dates to be agreed upon 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 Don Shiel Photography undertakes to complete the Services and provide the Portrait Collection and Photographic Artwork 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 another venue, as required by You.
2.1 Two types of fees 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 are payable upon ordering your prints and products at your purchasing appointment.
2.2 You agree to pay Don Shiel Photography the Fees 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 for the Payment Plan is 6 months, and Payment Plan Instalments are to be agreed upon with Don Shiel Photography 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 Don Shiel Photography may be adjusted from time to time by Don Shiel Photography.
2.6 You agree to make Payment of the Fees under Item 6 of Schedule 1.
2.7 You agree to pay the fees using 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 Don Shiel Photography will cancel your booking if payment is not made in full on the due date. If You are making payment by a payment plan if payment is not made as and when it is due, Don Shiel Photography is entitled to charge You a late fee of $11.
3.1 High-resolution digital files are available for You to purchase from Don Shiel Photography.
3.2 Copyright in the high-resolution digital files is retained by Don Shiel Photography and its photographer, Don Shiel. Don Shiel Photography, we grant You a limited release by way of a personal use-only licence to make cards, photo albums, 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 them electronically, but You must use the web-sized images provided and 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 Don Shiel Photography. 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.
4.1 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 faulty.
4.3 Prints and wall art will be ready 3-6 weeks after we receive your payment. Some items, such as fine art books, can take up to 8 weeks. When your order is ready, we will send You an SMS to arrange a pick-up time.
5.1 You recognise and acknowledge that all copyright in the Services, Portrait Collection, and Photographic Artwork is the property of Don Shiel Photography and its photographer, Don Shiel. You will take all such steps as practicable to ensure that the copyright vests in and remains vested in Don Shiel Photography and its photographer, Don Shiel.
5.2 Don Shiel Photography and its photographer Don Shiel grants to You a non-exclusive, non-transferable, royalty-free, perpetual licence to use the copyright owned by Don Shiel Photography and its photographer Don Shiel, with the Portrait Collection and Photographic Artwork.
5.3 You hereby indemnify and agree to keep indemnified Don Shiel Photography and its photographer Don Shiel against all liability, losses or expenses incurred by Don Shiel Photography and its photographer Don Shiel, including damage to Don Shiel Photography's reputation and the reputation of Don Shiel Photography and its photographer Don Shiel, in relation to or in any way directly or indirectly connected with any breach of copyright by You or your agents.
6.1 Don Shiel Photography and its photographer, Don Shiel, 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 on 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 Don Shiel Photography.
6.2 Don Shiel Photography and its photographer, Don Shiel, assert moral rights regarding the Portrait Collection and Photographic Artwork, including attribution rights. Don Shiel Photography and its photographer, Don Shiel, 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 Don Shiel Photography'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 your own use, 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 Don Shiel Photography.
7.1 You acknowledge You are responsible for the storage and backup of the Portrait Collection and Photographic Artwork supplied by Don Shiel Photography. While Don Shiel Photography will follow usual backup procedures upon delivery of the Portrait Collection and Photographic Artwork, Don Shiel Photography 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 upon.
7.2 You are responsible for handling, storing, and maintaining the prints and products You order. Don Shiel Photography shall not be liable for any damage incurred due to improper handling, framing, hanging, or exposure to sun or moisture.
7.3 Portrait Collection and Photographic Artwork are available for reorder and purchase for 12 months following the 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. Reorders are subject to the prices current at the time. If your original order is less than $1000, only the images You ordered will be kept on file, and the rest will be deleted.
8.1 All images in your Portrait Collection and Photographic Artwork will be edited and retouched (adjusted for colour, tone, contrast, etc) according to Don Shiel Photography's signature style. This work is carried out as part of your Portrait Experience.
8.2 Any images 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. Don Shiel Photography will charge an additional fee of $55 per hour if You require retouching of this kind on your complete digital file collection.
8.3 Don Shiel Photography can offer additional retouching services over and above what's already been described where requested. If such work is required, it will be subject to an extra charge of $55 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 photos from your Portrait Collection yourself, they may appear differently from Don Shiel Photography prints. This is because of different screen quality and calibration of screens and printers. Don Shiel Photography equipment is calibrated to match its professional printing lab profile, and Don Shiel Photography recommends printing through Don Shiel Photography. Don Shiel Photography is not responsible for how images from your Portrait Collection appear when printed at home or through consumer labs.
Don Shiel Photography may collect and retain personal information about You as part of creating the Portrait Collection and Photographic Artwork. Any personal information will be obtained, retained and used following Don Shiel Photography's Privacy Policy, found on Don Shiel Photography's website www.donshielphotography.com.au.
10.1 For Don Shiel Photography
(a) Don Shiel Photography 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 Don Shiel Photography's discretion, Don Shiel Photography 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, Don Shiel Photography may choose not to terminate the Engagement.
(b) If Don Shiel Photography terminates the Engagement, You will pay Don Shiel Photography 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 Don Shiel Photography of these Terms & Conditions by providing 7 days' written Notice of the breach to Don Shiel Photography. During the 7-day notice period, Don Shiel Photography reserves the right to remedy the breach. If Don Shiel Photography remedies the breach that was the cause of the Notice, the Engagement will not be terminated.
(b) If You provide a Notice of intent to terminate the Engagement, You will pay for the work carried out up to the time the Engagement is terminated, including all Job-Related Costs.
(c) If You terminate the Engagement with less than 7 days' Notice and for reasons other than a breach by Don Shiel Photography, You must pay 100% of the fees to Don Shiel Photography.
11.1 When entering into these Terms & Conditions, and upon payment of the Sitting Fee, You become liable to Don Shiel Photography for the Fees, and Don Shiel Photography becomes liable to You for the Services.
11.2 The Services can be rescheduled once to another date due to illness, other emergency, or any other reason, subject to Don Shiel Photography's availability. Requests to reschedule the Services to another date for any reason other than illness or other emergency must be made 14 days before a Photography Session and 7 days before 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, Don Shiel Photography will charge You a cancellation fee of $110 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 of the photography session booking date.
11.5 Don Shiel Photography 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). Don Shiel Photography 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 of request, Don Shiel Photography reserves the right to charge a cancellation fee of $110.
11.6 If You make a booking for an outdoor session of any kind, You agree that You will comply with Don Shiel Photography's inclement weather and rescheduling policy as follows:
(a) You cannot request rescheduling your outdoor session based on an advance weather forecast.
(b) You will allow Don Shiel Photography to decide whether to reschedule your outdoor session for 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) Don Shiel Photography, do not reschedule outdoor sessions because it is hot, cold, frosty, foggy, cloudy, or if 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 Don Shiel Photography will offer is to move to the Don Shiel Photography Studio in Oran Park. If your group is too big or otherwise unsuitable for the studio (at Don Shiel Photography's discretion), Don Shiel Photography will attempt to find a suitable undercover outdoor location. If this is not suitable (at Don Shiel Photography's discretion), Don Shiel Photography will reschedule your session for another time and date (see 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) Don Shiel Photography 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, Don Shiel Photography reserves the right to charge a cancellation fee of $110 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.
You agree to indemnify Don Shiel Photography 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 Don Shiel Photography to recover unpaid money under these Terms & Conditions.
13.1 You agree to release Don Shiel Photography from any and all liability relating to colour reproduction of supplied works on any system not under the direct control of Don Shiel Photography. Where Don Shiel Photography 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 Don Shiel Photography from any liability for any claim based upon fading or discolouration. Where colour cannot be reproduced accurately due to limitations in capture and output technology, You release Don Shiel Photography from any and all liability.
13.2 Except as provided by under Australian Consumer Law, Don Shiel Photography 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.
14.1 If circumstances beyond Don Shiel Photography's control prevent or hinder its provision of the Services, Don Shiel Photography is free from any obligation to provide the Services while those circumstances continue. Don Shiel Photography may elect to terminate this Agreement or keep the Agreement on foot until such circumstances have ceased.
14.2 Circumstances beyond Don Shiel Photography's control include, but are not limited to, labour shortages, pandemics, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, and failures or malfunctions of computers or other information technology systems.
15.1 Don Shiel Photography requests that written consent is in the form of the Use of Images Permission Form contained in Schedule 2.
15.2 Upon request by Don Shiel Photography, You will provide copies of all permission forms signed by the relevant persons to Don Shiel Photography.
15.3 You agree to fully indemnify Don Shiel Photography from all claims, suits and demands, and in respect of any and all costs incurred by Don Shiel Photography arising from your failure to obtain signed permission forms from all persons included in the photoshoot.
16.1 If required attendees fail to present themselves in a timely manner to enable Don Shiel Photography to complete the photography session as planned with You, Don Shiel Photography will not be held liable for any inability or failure to capture images that include such attendees.
16.2 Don Shiel Photography aims to capture a wide variety of images according to its signature style during the photography session, including any specific request or wish by You. However, Don Shiel Photography cannot guarantee that any particular image You requested will be captured during the photoshoot. Don Shiel Photography will not be held liable for any inability or failure to capture specific photos You requested.
16.3 Don Shiel Photography is not obligated to provide the Services if the personal safety or well-being of a Don Shiel Photography photographer 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.
17.1 Communication between Parties
The parties agree to email at the email addresses in 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 Don Shiel Photography in writing (including by email) if any material or information provided to Don Shiel Photography is confidential. Don Shiel Photography will keep that material or information confidential, except where disclosure is reasonably necessary to enable Don Shiel Photography 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) The laws of New South Wales govern these Terms & Conditions.
(b) In the event of any dispute arising out of or with the Services, You agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales.
17.5 Dispute Resolution & Mediation
(a) If a dispute arises from or relates to the terms of these Terms & Conditions, either party must not commence any legal proceedings with 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 endeavour in good faith within seven days of the Notice endeavour to resolve the Dispute expeditiously by negotiation or 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 the selection of a mediator or request that an appropriate mediator be appointed by an Independent Third Party as agreed or their nominee and attend a mediation.
(e) It is agreed that mediation will be held in New South Wales 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 the 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) If the Dispute is not resolved after 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
Don Shiel Photography disagrees that You may delegate, assign, novate, and/or subcontract any obligations pursuant tothese Terms & Conditions to any person without Don Shiel Photography's consent.
17.8 Entire Agreement and Modifications
Both You and Don Shiel Photography 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 an inconsistency between these Terms & Conditions and any other agreement, these Terms & Conditions shall prevail.
SCHEDULE 1
Commencement date:
The date You complete and submit the booking confirmation form.
Completion date:
Upon collection of final artwork.
Services:
Phone consultation, Photography Session(s) (as outlined in the Booking Confirmation Form), Purchasing Appointment, Prints, products, and photographic artwork are agreed on and charged separately.
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.
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 Don Shiel Photography website.
Payment terms:
Payment terms—The Sitting Fee is paid before completing the Booking Confirmation Form. 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 upon with Don Shiel Photography. Payment plans are available for orders of Photographic Artwork over $1000. A 25% deposit must be paid immediately upon placing an order for the Portrait Collection and Photographic Artwork. The maximum Payment Plan period is 6 months. Payment Plan instalments are to be agreed upon with Don Shiel Photography upon placing an order for the Portrait Collection and Photographic Artwork. A $11 fee will be charged for paying a Payment Plan Instalment 7 days after the agreed instalment date. If You need to change or vary your instalments, please contact us before the due date. If You decide to discontinue your payment plan, the money paid will not be 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, a late fee of $11 will be added to your order. Your Photographic Artwork order will not be produced until payment is made in full.
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 via the 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 before the renewal date. If your scheduled auto-payments fail, You will be liable for associated fees. If You cancel your membership subscription, the money paid will not be refundable, and if we have already produced your order, you are liable for the remaining balance.
Method of payment:
Cash, Direct Deposit, debit card, or credit card. Payment plan instalments are paid by direct debit on the agreed-upon instalment dates. Payment terms for membership subscriptions are processed automatically by credit/debit card on one day each month for the membership term via the Stripe payment gateway.
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 it may include prints, digital files, wall art, albums, and other packages.
Email addresses of parties:
Don Shiel Photography: studio@donshielphotography.com.au You: as per the details provided in the Booking Confirmation Form.
You: as per the details provided in the Booking Confirmation Form.
Parties
Don Shiel Photography: 33 Agostini Circuit, Oran Park NSW 2570
You: as per the details provided in the Booking Confirmation Form.
SCHEDULE 2
USE OF IMAGES PERMISSION FORM
Don Shiel Photography 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 Don Shiel Photography in any form and media for advertising, trade, and other lawful purposes. By granting us permission to use your images, You are releasing and discharging Don Shiel Photography 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 Don Shiel Photography this permission and whether there are any specific rules You would like us to follow. We will ask You to decide and sign off on this at the end of your Purchasing Appointment.