Appointment

We render our Services to you on the basis set out in these Terms of Engagement.
Interpreting These Terms of Engagement
These Terms of Engagement contain a number of words and phrases which have specic meanings and most of which are capitalised. The Glossary contains many of these words
and phrases (others are set out in these Terms of Engagement body and are designated by terms in quotation marks).
We also apply certain rules when interpreting these Terms of Engagement in the Interpretation Guide.
Consumer Protection Act Application
A transaction (as dened in the Consumer Protection Act) between a you and us may or may not fall under the provisions of the Consumer Protection Act depending upon whether
certain of your threshold values are below a certain value at the time the transaction is entered into.
The threshold values relate to a your asset value or annual turnover, and the value against which they are measured is as determined by the Minister of Trade and Industry by
publication in the Government Gazette from time to time.
Our duties towards you may vary depending upon whether the transaction in question is subject to the Consumer Protection Act, and we will rely on information you give us in order
to determine whether the Consumer Protection Act applies. Consequently:
You warrant that any statement you make to us regarding relevant threshold values is accurate.
We may require you to provide us with the supporting nancial statements as proof of any threshold values which you may represent as being below the relevant values, or in the event it
appears that the Consumer Protection Act applies to our contract with you in the form of these Terms of Engagement.
If you misrepresent any threshold values and we are subsequently penalised as a result of our reliance on your misrepresentations you agree that we may hold you liable for any Losses we
sustain as a result.
Amendments to these Terms of Engagement
You agree that we may, in our sole discretion, amend these Terms of Engagement at any time, in any way and from time to time. We will publish details of our proposed amendments
to these Terms of Engagement in a notice to this e!ect on our Website. This notice will identify the specic amendments we propose making to these Terms of Engagement and the
date on which these proposed amendments will become e!ective.
You agree that such a notice will be adequate notice of the proposed amendments and that these amendments shall automatically come into e!ect on the date specied in this
notice. You further agree that it is your responsibility to review these Terms of Engagement regularly in the event that we do publish a notice of proposed changes. Your continued
use of the Services (except where your continued use of Services is permissible in terms of, for example, specic licenses) will be subject to you agreeing to the amended Terms of
Engagement.
Duration and Termination
You agree that these Terms of Engagement bind you with e!ect from the Commencement Date or when you otherwise use the Services in any way, in which case you understand
and agree that your Services use will signify your acceptance of these Terms of Engagement from the moment you rst begin to use the Services.
These Terms of Engagement shall endure until terminated on the basis set out in these Terms of Engagement.
Either Party may terminate these Terms of Engagement on 3 months notice by delivering a written Termination Notice to this e!ect and only after
1. the Services described in each Booking Form in e!ect at the time of such notice have been fully rendered and the associated fees paid in full; or
2. the remaining Booking Form/s in e!ect at the time of such notice have been terminated in accordance with these Terms of Engagements provisions and Client has paid any fees due to us
as at the date of the Termination Notice in full.
E!ect of Termination
In the event these Terms of Engagement are terminated for any reason whatsoever, the following clauses and their subsidiary clauses shall survive termination:
1. Fees;
2. Prohibition on Interference and Solicitation;
3. Liability;
4. Breach;
5. Governing Law and Jurisdiction; and
6. Domicilium and Notices.
The Services
Services specications
We shall, during the currency of these Terms of Engagement, render the Services described in the Booking Form. The Booking Form, as amended and signed by the Parties
representatives from time to time, shall specify the Services we agree to render pursuant to these Terms of Engagement, as well as the Parties other responsibilities.
Services you require of us shall be recorded in appropriate Booking Form. Existing Booking Forms may be amended or wholly replaced by the Parties, provided that each amended
or replacement version of the Booking Form shall be written and signed by both Parties representatives.
In the event the you instruct us to render Services in circumstances that do not, reasonably, allow for Booking Form to be prepared, agreed and signed in advance, the Parties agree
that we shall conrm your instructions in an appropriate Booking Form within 2 days of receipt of your instructions. You agree that our subsequent Booking Form shall bind you and
govern your instructions. To the extent the Booking Form does not accurately or completely record your instructions, the Parties may negotiate and agree on an amendment to or
replacement of the Booking Form within 5 days of the Booking Forms delivery to you, failing which the Booking Form already issued shall bind the Parties.
Booking Form amendments or replacements may, at our discretion, necessitate and result in consequential changes to our fees payable and delivery timeframes for the Services
described in the amended or replacement Booking Form. We shall notify you of any such changes in writing and Services based on such amended or replacement Booking Form
shall commence on your acceptance of such changes.
Each of the Booking Forms (including each version of the Booking Forms) shall become binding on the Parties upon signature of the Booking Form by both Parties and shall be
governed by these Terms of Engagement.
To the extent a conict or inconsistency arises between the Booking Form, as amended from time to time, and the main body of these Terms of Engagement in respect of the
Services description, the Booking Forms provisions shall prevail to the extent of the inconsistency.
We will render the Services during the hours and on the days specied in the Booking Form.
The Parties expressly record that each of the Services constitutes a separate and distinct service, and nothing set out in these Terms of Engagement shall be construed as
necessarily obliging us to render all such Services as a single, indivisible service.
Service Levels
We undertake to ensure that the standard of the Services we render to you in terms of these Terms of Engagement shall be consistent with examples of our work on the Website or,
in the absence of examples of our work on the Website, consistent with relevant industry standards.
Outsourced Services
Certain of the Services set out in the Booking Form and which we will render in terms of these Terms of Engagement may be Outsourced Services provided that appointing,
managing and/or terminating 3rd Party service providers to render Outsourced Services shall not be materially detrimental to our performance of its obligations and/or compromise
the service levels agreed to in these Terms of Engagement.
3rd Party service providers may, in consultation with you, include substitute photographers in the event we are reasonably unable to conduct the Shoot. In the event we appoint a
substitute photographer, the substitute photographer shall be a suitably experienced professional photographer having regard to the nature of the Shoot.
We may, in its discretion, at any time and from time to time
1. sub-contract any of the Services to a new 3rd Party service provider as Outsourced Services and/or;
2. change the identity of any 3rd Party service provider rendering Outsourced Services.
Fees
You shall, as consideration for the Services we will render in terms of these Terms of Engagement and described in a Booking Form, pay our fees to us which are set out in the
Booking Form or, as the case may be, in the Rate Card. In the event we renders Services to you at your request which are not set out in the Booking Form, our fees shall be
determined with reference to the Rate Card.
We may require deposits, reected in the Booking Form, payable in advance and no later than the Commencement Date, for the Services. We shall not be required to render
Services subject to deposits until such time as the deposits are paid in full. These deposits may not be refundable in the event you cancel these Terms of Engagement within 3
months of the Shoot.
You shall pay the fees, to us, in the amounts and on the terms stated in our interim and nal invoices issued to you from time to time. In the event that our invoices do not state our
payment terms, invoices are payable on the day immediately preceding the Shoot.
Quotations and Pricing Validity
Our fee quotations are valid for a period of 6 calendar months from the date we issue them. In the event you do not accept our quotation within 6 calendar months, you agree that
we may revise our quotation as we deem appropriate.
Additional Expenses
You agree to reimburse us for all reasonable expenses we incur for the purposes of rendering the Services to you. We will obtain written authorisation from you prior to incurring any
expenses which will be additional to the fees as set out in our Rate Card, the Booking Form or these Terms of Engagement.
You shall be responsible for our travel costs outside a 50 kilometre radius of our usual o"ce. You also agree to arrange safe and secure parking for us and our contracted 3rd Party
service providers at the Shoots venue and such other locations as we may reasonably require in order to render the Services at your cost.
We shall not be liable for shipping costs (including, but not limited to, courier and postage costs) where you require any or all of the Services deliverables to be delivered to you using
the postal, courier or similar services.
You shall, at your cost, provide us and our contracted 3rd Party service providers with a meal and soft drinks where the Shoot is a catered event that runs for longer than 2 hours.
Delays and Reinstatement
Should you unreasonably delay the Services for any reason whatsoever, you acknowledge and agrees that
1. We shall be entitled to a fee calculated with reference to resources that have been scheduled according to the Booking Form and any additional costs which have been incurred as a result
of your delay. This fee shall either be specied in the Booking Form or, if it is not specied, shall be a reasonable fee in the circumstances having regard to the Rate Card;
2. it may be necessary to amend the Booking Form to accommodate the delay and any other factors which we, in our discretion, deem relevant.
If this delay exceeds 20 days, the Services may be suspended pending the resolution of the cause of the delay and, subsequently, reinstated subject to payment of a reinstatement
fee specied in the Booking Form or in the Rate Card which we may o!set against your deposit.
Non-Payment or Inability to Perform
In the event you fail to timeously e!ect payment of any amount due to us in terms of these Terms of Engagement, we shall, furthermore, be entitled to
suspend the provision of the Services in terms of these Terms of Engagement for any period in which any payment remains outstanding;
exercise a lien over any or all Services deliverables including, but not limited to, any Content; and/or
charge interest on all such amounts shall bear interest at a rate equal to 2% above the prime overdraft rate which our bankers may charge us from time to time.
We reserve the right to charge a cancellation fee, which shall be specied in the Booking Form where appropriate, should you unilaterally terminate these Terms of Engagement prior
to the Shoot in a manner and/or for a reason not expressly provided for in these Terms of Engagement.
You agree that you shall pay all our expenses in recovering any amounts you owe us, including legal costs on the attorney and client scale, collection charges and tracing fees, and
VAT these amounts.
Intellectual Property
Bespoke Content
You agree that, by virtue of section 21(1)(e) of the Copyright Act, section 21(1)(c) of the Copyright Act shall not apply and that we shall remain the owner of copyright in the Bespoke
Content. We shall grant you a non-exclusive Content License in respect of the Bespoke Content on receipt of payment of our fees for the Bespoke Content, in full.
Our Content
We retain ownership of all Intellectual Property Rights in our Content.
We grant you a non-exclusive Content License in respect of our Content.
Your Content
You retain ownership of all Intellectual Property Rights in the your Content.
You grant us a non-exclusive Content License in respect of the your Content.
3rd Party Content
The Parties acknowledge that the applicable 3rd Party shall retain ownership of all Intellectual Property Rights in the 3rd Party Content and is licensed on terms and conditions
determined by the 3rd Party concerned.
These Terms of Engagement do not purport to transfer ownership of any Intellectual Property Rights in the 3rd Party Content to either Party.
Intellectual Property Notices
Except to the extent these Terms of Engagement may permit, neither Party may
1. remove and/or tamper with the copyright, trademark and other proprietary notices contained on or in Intellectual Property licensed to that Party and shall reproduce such notices on all
copies of such Intellectual Property;
2. save as provided for in these Terms of Engagement, reproduce or modify licensed Intellectual Property; or
3. cause or permit any 3rd Party to discover the source code of any software constituting either Partys Intellectual Property except where the Party concerned as permission to do so; or
4. rent, lease or otherwise distribute any Intellectual Property or its direct derivatives to any 3rd Parties.
Data Protection
We require certain personal information from you and 3rd Parties in order to render our Services e!ectively. We explain how we process this personal information in our Data
Protection Policy.
Please ensure that you familiarise yourself with our Data Protection Policy and inform us if you or any 3rd Parties whose personal information we may require does not agree to our
Data Protection Policy, in which case we may decline to render some or all of our Services.
Representatives
We and you hereby appoint those persons identied in the Booking Form as their representatives for purposes of these Terms of Engagement. The persons we and you nominate
shall liaise with each other in relation to all matters pertaining to the Parties performance in terms of these Terms of Engagement.
Any notice or communication, which either Party may provide to the other Party other than by the agency of the respective representatives identied in the Booking Form, shall be
invalid and ine!ectual.
Prohibition on Interference and Solicitation
Neither Party shall knowingly, for the duration of these Terms of Engagement and for a period of 1 year after these Terms of Engagement terminate for any reason, furnish any
information or advice to anyone else which results in any sta! member or any representative and/or agent of the other Party who was involved in the implementation or execution of
these Terms of Engagement to terminate his employment with that Party and/or any other contractual relationship and/or becoming employed by, or directly or indirectly interested in
any manner in, any concern which carries on business, directly or indirectly, in competition with any part, aspect or facet of the business conducted by the other Party.
Should any provisions of this clause or part thereof be found by any competent court to be defective or unenforceable for any reason whatever, the remaining provisions of this
clause shall continue to be of full force and e!ect.
Liability
Disclaimers and Limitation of Liability
You agree that we are
unable to, and is not required to, guarantee a particular commercial result or set of results; and/or
not responsible for colour print reproduction errors made by 3rd Party service providers.
You agree that neither we or our Associates shall be liable for any Losses however arising and whatever the cause, in particular pursuant to and in furtherance of these Terms of
Engagement.
Our liability to you shall furthermore be limited to the total amount of the fees we charge and which you have paid for the Services directly related to your claim.
Indemnity
You hereby indemnify us and our Associates from any Losses, which may arise as a result of your unlawful conduct, wilful misconduct, negligence and/or gross negligence.
Warranties
To the fullest extent permissible by law, we disclaim all warranties of any kind, whether express or implied in respect of the Services and the you make use of the Services at your
own risk.
If you are not, factually or legally, authorised to bind another person as our Client to these Terms of Engagement, you agree that you will be personally liable to us for any amounts
due to us in terms of these Terms of Engagement or otherwise as a consequence of using the Services in the event the legal entity concerned refuses or fails to pay any amounts
which are due to us and as if you contracted with us for your personal Services use.
Breach
Subject to any other provision of these Terms of Engagement providing for the remedy of any breach of any provision hereof, should either Party (the O!ending Party) commit a
breach of any provision of these Terms of Engagement and unreasonably fail to remedy such breach within (10) ten days of receiving written notice from the other Party (the
Aggrieved Party) requiring the O!ending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to -
cancel these Terms of Engagement, provided the breach in question is a material breach going to the root of these Terms of Engagement; or
claim specic performance of all of the O!ending Partys obligations whether or not due for performance,
in either event without prejudice to the Aggrieved Partys right to claim damages.
Either Party shall be entitled to summarily terminate these Terms of Engagement in the event of the other Party being placed in liquidation or under judicial management, whether
provisionally or nally, 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 these Terms of
Engagement shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
Arbitration
Should any dispute concerning these Terms of Engagement arise, the Parties shall try to resolve the dispute by negotiation. This entails that the one Party invites the other, in writing,
to a meeting which the invited Party shall attend and both Parties shall sincerely endeavour to resolve the dispute within 5 (ve) days from date of the written invitation.
If the dispute has not been resolved by such negotiation, the Parties shall submit the dispute to AFSA administered mediation, upon the terms set by the AFSA secretariat.
Failing such a resolution, the dispute, if arbitrable in law, shall be nally resolved in accordance with AFSAs Rules by an arbitrator or arbitrators appointed by AFSAs secretariat.
Governing Law and Jurisdiction
These Terms of Engagement 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 South Gauteng High Court, Johannesburg.
Interruption Event
An Interrupted Party shall be relieved of its obligations in terms of these Terms of Engagement 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 su!er as a result.
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.
In the event that an Interruption Event exceeds
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 these Terms of Engagement; or
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 these Terms of
Engagement and shall only remain liable for performance under these Terms of Engagement which fell due immediately prior to the Interruption Event.
Assignment
Save as expressly stated to the contrary herein, no Party 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 these Terms of Engagement except with the prior written consent of the other Parties.
Severability
If any clause or term of these Terms of Engagement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and
provisions of these Terms of Engagement shall be deemed to be severable therefrom and shall continue in full force and e!ect unless such invalidity, unenforceability or illegality
goes to the root of these Terms of Engagement.
Domicilium and Notices
The Parties choose domicilium citandi et executandi (domicilium) for all purposes arising from or pursuant to these Terms of Engagement, your address and contact details set out
in the Booking Form and our address and contact details set out on our Website in respect of each Partys representative.
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 box number in the
Republic of South Africa, and any such change shall only be e!ective upon receipt of notice in writing by the other Parties of such change.
All notices, demands, communications or payments intended for any Party shall be made or given at such Partys domicilium for the time being.
A notice sent by one Party to another Party shall be deemed to be received:
on the same day, if delivered by hand;
on the same day of transmission if sent by telefax with receipt received conrming completion of transmission;
on the 3rd day after dispatch, if sent by prepaid courier.
Notwithstanding anything to the contrary herein contained 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.
Miscellaneous
This document constitutes the sole record of the Parties agreement in regard to these Terms of Engagements subject matter.
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
No addition to, variation or consensual cancellation of these Terms of Engagement, or this clause, shall be of any force or e!ect unless in writing and signed by or on behalf of all the
Parties.
No indulgence, which either Party may grant the other, shall constitute a waiver of any of the rights of the indulgent Party, who shall not thereby be precluded from exercising any
rights against the indulged Party which might have arisen in the past or which might arise in the future.
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 e!ect or maintenance of the terms, conditions and import of these
Terms of Engagement.
Interpretation Guide
In these Terms of Engagement, headings are for convenience and are not intended to be used to interpret the Terms of Engagement.
If these Terms of Engagement refer to a Party who is liquidated or sequestrated (or has been through a comparable process under a di!erent legal system), then the Terms of
Engagement will also be applicable to and binding on that partys liquidator or trustee, as the case may be.
Unless these Terms of Engagement indicate to the contrary, any references to any gender includes the other genders, a natural person includes an articial person and vice versa,
the singular includes the plural and vice versa.
The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Terms of Engagement, shall not apply.
Where in these Terms of Engagement 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.
The use of the word including followed by a specic 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 specic example.
Where these Terms of Engagement species any number of days, the number of days excludes the rst 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.
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 day. Any reference to
time shall be based upon South African Standard Time;
All annexures, addenda and amendments to these Terms of Engagement form an integral part of these Terms of Engagement and, therefore, ours contract with you.
The words and phrases in the Glossary bear the meanings assigned to them and related expressions bear corresponding meanings.
Glossary
3rd Party means a person other than you and us;
AFSA means the Arbitration Foundation of South Africa;
Associates means a Partys o"cers, servants, agents or contractors or other persons in respect of whose actions that Party may be held to be vicariously liable;
Booking Form means the document outlining the proposed Services which we propose rendering to you together with the associated fees and charges for the Services to be
provided;
Client, you and your means or are references to the Party identied in the Client Details as the Client and is either
you, personally, if you are contracting with us in your personal capacity; or
a legal entity such as a company or close corporation you represent, in which case you
represent to us that you are authorised by that legal entity to enter into this contract on that legal entitys behalf; and
agree that when we refer to you in these Terms of Engagement, we are referring to the legal entity you represent with you as its authorised representative;
Commencement Date means the date these Terms of Engagement become e!ective, bind the Parties and which is either the date on which
you signify your approval of and assent to a Booking Form or the Rate Card; or
we rst render Services to you.
Consumer Protection Act means the Consumer Protection Act (No. 68 of 2008), as amended from time to time;
Content means any material capable of and in which copyright protection subsists (such as data les, written text, computer software, music, audio les or other sounds,
photographs, videos or other images);
Content License means a perpetual, irrevocable, worldwide, royalty-free and sub-licensable license to reproduce, adapt, modify, translate, publish, publicly perform, publicly
display and distribute the subject matter of the license for the limited purpose of enabling the Parties to give e!ect to these Terms of Engagement;
Copyright Act means the Copyright Act (No. 98 of 1978), as amended from time to time;
Data Protection Policy means the policy document, available on or through our Website, explaining what personal information we collect and how we process it;
dispute means any disagreement, argument or claim arise between the Parties as contemplated in the Arbitration clause;
Intellectual Property means the expression and/or representation of an intellectual and/or creative process and includes, but not be limited to, any text, images, data, multimedia,
ideas, source code, concepts, know-how, data processing techniques, copyrights, trademarks, logos, patents, designs, inventions and includes Content
which we create, invent and/or develop at yours specic instance and request of pursuant to a Booking Form (Bespoke Content); and
which you developed independently and/or own (your Content); and/or
which we developed independently and/or own (our Content); and/or
which any 3rd Party developed and own (3rd Party Content);
Intellectual Property Rights means rights in Intellectual Property;
Interruption Event means strike, lock-out, re, explosion, oods, 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;
Interrupted Party means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Terms of Engagement by reason of an
Interruption Event;
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, nes, 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);
Outsourced Services means Services outsourced to and rendered by 3rd Party service providers to you;
Parties means us and you;
"personal information means the personal information as dened in the Promotion of Access to Information Act, 2 of 2000;
Rate Card means our fees and charges schedule which we publish from time to time and which is available on request;
Services means the services to be to Client as described in the Booking Form, the Rate Card or on the Website;
Shoot means the photo shoot during the course of which we will take photographs of you and/or such other subjects as you may specify in the Booking Form or otherwise in
writing;
Terms of Engagement means these terms and conditions, as amended from time to time;
Termination Notice means the notice terminating these Terms of Engagement referred to in the Duration and Termination clause;
Acme Photography, us, we and our means or are references to Acme Photographer trading as a sole proprietor in her name;
use bears its ordinary meaning and when used in the context of -
the Website, means to visit or load the Website in a web browser, mobile phone or similar software application or device or otherwise engage with the Website;
Content, means to copy, download, distribute, display, view, modify, adapt, load in a web browser, mobile phone, software application or device or to otherwise engage with and/or
manipulate the Content; and
Website means our website located at http://www.acme.co.za or such other websites as may be associated with and controlled by us from time to time.