LAST UPDATED: JANUARY 20 2020

SEE ALSO ‘PRIVACY POLICY’ 

These Terms of Service (“Terms,” or the “Agreement”) is a legal Agreement, please read it carefully. By using our Service you are agreeing to these terms.

DelmarreDesign.com is a Service (the “Service”), which primarily produces product and portrait photography and related Content which may include photographs, graphics,video, audio recordings, and artwork (collectively referred to as “Content”).

Any products, fashion, still-life or other items that we work with, whether it’s the primary subject, supporting prop, or anything else, we refer to as “Merchandise” in these Terms.

Any prints, canvases or personalised artwork that you purchase from us we refer to as “artwork” in these terms.

Our Website, which can be accessed at www.DelmarreDesign.com is referred to as the “Website.”

DelmarreDesign.com is owned and operated by (“Delmarre Design” “we,” or “us”) ABN26297611703.  By using our Service, whether as an individual or as a representative of an entity that is using our Service, you’re a “Client” (or “you”) according to these Terms.

These Terms of Service, combined with our Privacy Policy govern the business relationship between you and Delmarre Design. Should you have any questions or concerns about these terms, please feel free to contact us.

1. Eligibility

In order to use our Service, you must:

a. Be at least 18 years of age and be able to enter into legal contracts;

b. Submit a completed “order” form;

c. Agree to these Terms Of Service, and;

d. Provide complete, true, and current, contact information.

2. Updates

We may update or make changes to these Terms by posting the revised Terms of Service on our Website. The revised Terms shall take effect and remain in full force immediately upon publication.

3. Communication

If we need to send you information about your account, your order, billing, your Merchandise, legal notices, or anything else related to the Service we provide, we will send it to the email address you provided when starting your order. We may also contact you via telephone and postal mail, but are not required to do so. You should ensure any email coming from the domain “DelmarreDesign.com” is added to a “whitelist” to help ensure delivery and that it is not rejected or deleted as junk or spam.

4. Merchandise photography – orders, invoicing & payment

You are responsible for booking the appointment for mobile product photographic services for your Merchandise. We will collect the merchandise at the specified time. Please do not post any Merchandise to us. If a confirmed booking appointment is missed, delayed, or postponed  we are not responsible for such loss, damage or delays.

a. Prohibited items. Do not book us for any Merchandise photography that contains, any narcotic, illegal drug, or controlled substance, or any dangerous weapon, firearm,explosive, dangerous chemical, obscene or pornographic materials or any merchandise that is unlawful to create or possess in Western Australia.

b. Payment terms. Payment is required to secure a mobile photographic booking for you or your Merchandise. When payment is received, your project is added to your chosen appointment slot and the booking is confirmed. If the appointment booking slot is not available, the booking appointment will be added to the next available opening on our production schedule. For projects less than $5,000 AUD, full payment is required in advance.

c. Invoicing and payment. For projects greater than this amount, you have the option of submitting 50% of the total as a deposit, and the remainder due within 10 days and the delivery of low-resolution watermarked images, will be converted to full-size un-watermarked images after receipt of the balance. The provisions specified in this section shall not apply if alternate payment terms are agreed to in writing by both parties. If you notice an issue on the merchandise, or anything else on your order invoice please email us at info@delmarredesign.com as soon as possible for advice.

d. Non-payment. If payment for our services is not rendered, we may take legal action to collect payments due. We may also exercise our rights under the Digital Millennium Copyright Act to issue takedown notices requesting the removal from website(s), any Content we’ve delivered to you which has gone unpaid. We may also seek injunctive relief to prevent unpaid Content from being published, reproduced, or displayed. Additionally, we may pursue legal action for actual, statutory, and punitive damages for copyright infringement if you publish or use our Content without remitting payment.

This Policy shall be governed and interpreted in accordance with the English language, regardless of any translations made for any purpose whatsoever.

e. Refund policy. Payments made to us are refundable under certain circumstances as outlined below. No other refunds, returns, exchanges, or changes may be made except for the following:

i. Rush projects not completed by the deadline. In the event a rush order is not completed on time, we will refund the rush fee portion of the project. No other refunds will be made for rush orders delivered after the deadline indicated on the invoice.

ii. You cancel your order within the specified time. If you have already submitted payment, you may cancel your order by sending an email to info@delmarredesign.com requesting cancellation. Cancellation requests must be made within 24 hours of payment. Refunds are not possible for projects cancelled more than 24 hours after payment. Due to tight time constraints, rush orders may not be cancelled.

Refunds will be processed via the same method as the payment was made. Credit card payments will be refunded to the same card payment was made.

5. Portrait photography and artwork – orders, invoicing & payment

a. Order policy.

i. Photoshoot sessions. If you have already submitted payment, you may cancel your order by sending an email to info@delmarredesign.com requesting cancellation. Cancellation requests must be made within 24 hours of payment. Refunds are not possible for photoshoot sessions cancelled more than 24 hours after payment.

ii. Pets. If we are working with your pet(s) at your photoshoot session please be aware that your pet(s) need to be well-behaved around other animals and humans otherwise the photoshoot may be ended earlier than the allotted time or refused.

iii. Photoshoot design consultation. We will design your photoshoot session together to help you achieve the perfect look and feel for your portraits. Your session fee includes your photoshoot design consultation.

iii. In-person viewing session. Your in-person viewing session is included in your photoshoot session fee. Additional sessions are available from $100 per hour session.

iv. Picture enhancing and editing. Your picture enhancing and editing are included in your photo session fee for regular editing work. Editing requests that include complex editing are chargeable at a rate of $50 per half hour.

iv. Printed artwork. You are responsible for approving your order of printed artwork from us. Printed artwork orders are final and once they are sent to the lab as customised pieces they are non-refundable. Please check your order carefully when placing it.

b. Payment terms. Payment is due in full to finalise your order. You are responsible for providing us with any additional materials we may need to complete your artwork for you (e.g. poems or personal notes for artwork).

b. Printed artwork returns policy. Any claims for misprinted/damaged/defective items must be submitted within 2 weeks after the product has been received. For packages lost in transit, all claims must be submitted no later than 2 weeks after the estimated delivery date. Claims deemed an error on our part are covered at our expense. Please note that as all artwork we sell is personalised we do not cover returns if you have changed your mind. We will only accept returns if the artwork is faulty. If you notice an issue on the artwork or anything else on your order please email us at info@delmarredesign.com as soon as possible for advice.

c. Printed Artwork with wrong address. If you provide an address that is considered insufficient by the courier, the shipment will be returned. You will be liable for reshipment costs once we have confirmed an updated address with you.

d. Digital artwork returns policy. As digital files are downloadable we have implemented a strict non-refundable policy on digital artwork.

e. Printed artwork care. Our printed artwork pieces are of the highest quality created using archival quality fine art ink and canvas. To protect your artwork you can choose for us to frame your prints to provide additional protection from UV sunlight. We also offer non-reflective glass to improve your picture viewing experience in your home. To take care of your artwork we do recommend placing your artwork out of direct sunlight and away from humid areas.

6. Pricing

Our current pricing is published on the pricing pages of our Website. We may make changes to the prices we charge for our services at any time by publishing the new rates to our Website. We may offer other products or services that aren’t listed on our pricing page and, if applicable, those rates will be disclosed prior to work being performed.

7. Taxes

You agree to be responsible for and pay any and all applicable sales, use, or value added taxes, or duties imposed by any jurisdiction as a result of the work performed for you by us or in connection with any license we grant to you.

8. Production and creative process

a. Alterations and accuracy. As part of our creative process, you agree we may make any alterations to the Content that we feel are appropriate. This includes, but is not limited to: color adjustments, brightness adjustments, dust removal, scratch removal, distortion removal, correction of defects, correction of manufacturing inconsistencies or errors, compositing of multiple images, adding graphics, and other alterations as necessary.

The Content is our artistic interpretation of the Merchandise we photograph for you. We do not guarantee that the Content will be a flawless or perfectly accurate representation of your Merchandise. It’s your responsibility to ensure the Content is appropriate for the final intended use and that it doesn’t misrepresent the Merchandise. We will not be responsible for any claims by you or any third party that the Content is an inaccurate representation of the Merchandise.

b. Creative direction. As our client, you may elect to provide creative direction over any aspect of the project, such as lighting, arrangement, camera angle, and editing. If you choose to exercise this creative direction, you must provide such direction in advance so it can be properly recorded on the invoice and/or any attachments. You must ensure this creative direction has been correctly recorded to the invoice and any attachments prior to payment. You are not required to provide direction on creative aspects of your project. Any aspects of the project for which you have not provided specific creative direction will be left up to the judgment of our production team.

c. Invoice and any attachments detail all direction. We will complete your order as it is described on the invoice and any attached documents. Our best understanding of any direction, instructions, or ideas you send to us, or we discuss with you, will be described on the invoice and any attachments. It is very important that you carefully read the invoice and any attachments to ensure they accurately describe the work you’d like us to perform for you. If the invoice is not accurate, do not submit payment. Instead, contact us to make the necessary changes. By submitting payment for an invoice, you agree the invoice correctly describes the work you would like us to perform. In the case where any written or verbal communication is inconsistent with the order as written on the invoice, the invoice and any attachments shall govern.

d. Review period. Immediately after the project is complete you will receive an email containing a link and password to view and download the Content. We allow up to 10 days for you to provide us with feedback regarding the delivered Content. After 10 days, if we have not heard from you, your order will be closed and your Merchandise will be shipped back, donated, or discarded, as you have requested and as indicated on the invoice.

e. Re-shoots and edits. During the review period you may contact us to request changes to the Content such as reshoots, edits, or additional photos. Upon request, we will reshoot or edit photos free of charge under the following circumstances:

1. Work not completed as specified on the invoice and accompanying shot list. If we make an error and deliver work that is not correct as specified on the invoice and its accompanying shot list, we will re-shoot or edit the work, as needed, to correct the error.

2. You request images to be edited. If you see anything in the Content that you’d like us to touch-up, we will be happy to perform one (1) round of editing, free of charge, at your request to further adjust details such as colour, tone, minor blemishes, and any other adjustments that can be made without re-shooting the Content.

Some change requests made during the review period may require an additional charge. Examples include:

1. Additional photos. If you request additional photos that were not previously included on the invoice we will inform you of the cost and request payment prior to completion of the work.

2. Re-shoots. If we’ve photographed images as they are described on the invoice you’d like to see them changed, such as different lighting, camera angle, arrangement, or anything else that requires them to be re-shot, then we will quote an additional charge to cover the cost of re-shooting them.

9. Delivery

a. Merchandise photography. After production is complete, the Content will be delivered through our Image Hosting Service. We will email you a link and a password so you can view and download all work that we’ve completed for you. We contract with a third party vendor who manages the website and software that runs our Image Hosting Service. While we make every effort to ensure availability, stability and security of this service, we cannot guarantee 100% uptime or that it will be secure against all attacks. You agree that we are not responsible for loss associated with the availability, security, or confidentiality of the Content delivered through our Image Hosting Service. We recommend that you make backup copies of all Content for your records in the event of data loss. We are not obligated to store or archive the Content for you and if we do this as part of our Image Hosting Service, such storage should be considered as a convenience only.

b. Printed Artwork. Your artwork will be delivered in person or couriered to your address as indicated on your order invoice. If a finalised order sent to our lab for processing is delayed, or postponed we are not responsible for such loss, damage or delays. We will archive your images for 3 months following the photoshoot date therefore we recommend that you order artwork and make backup copies of digitals in the event of data loss. We are not obligated to store or archive images for you and if we do this as part of our Image Hosting Service, such storage should be considered as a convenience only.

10. License and permitted use of Content

You may use Content we deliver to you in connection with your order, only after full payment has been submitted, for any permitted use that does not violate this agreement. The rights granted herein are subject to the prohibited uses in Section 12.

We hereby grant to you the following rights:

a. Perpetual use. There is no expiration date on your rights to use the Content, meaning you can use the Content forever with no end date.

b. Exclusive use. You have the exclusive right to use the Content. This means we will not license the Content to other parties. However, we retain the right to use the Content for our own promotional publication and internal use.

c. Worldwide use. There are no geographical restrictions on your use of the Content. You may use the Content worldwide.

d. Unlimited use. Except as provided in section 14(b) below, you may use and display the Content an unlimited number of times.

e. Derivative works. You may modify, retouch, combine, crop, annotate, or otherwise edit and create derivative works from the Content. Our Content contained within derivative works you create remain our copyrighted material and the terms and restrictions within this license also applies to those derivative works.

f. Permitted uses include but are not limited to: websites, online stores, online advertisements, email newsletters, video, film, television, printed advertisements, printed catalogues, product packaging, billboards, computer software, and mobile applications.

11. Prohibited uses

a. Unlawful use. You may not use the Content in any illegal manner. You may not use the Content in any defamatory manner or use the Content to harass any person. Content may not be used for pornographic purposes. You may not use the Content in any way that violates the trademark, copyright, or other intellectual property of any other party.

b. May not be used in a logo or trademark. Content may not be used as a part of, or incorporated into, any logo or trademark.

c. Portrait photography and artwork. Portrait photography, artwork and content may not be used for commercial purposes.

11. Copyright ownership & transfer

a. Copyright ownership. All Content remains the copyrighted intellectual property of DelmareDesign.com. No transfer of copyright or ownership in any of the Content is granted unless explicitly agreed to in writing by us.

b. Transfer, and sub-licensing. You may not transfer or sub-license the Content to any other party, with the following exceptions:

Subcontractors. Your subcontractors may use the Content for the purpose of achieving your final intended use. Examples include but are not limited to:

Your website designer using the Content to publish to your website. Your printing company using the Content to print a catalog. Your marketing company to create and broadcast an advertisement. Your subcontractors may not use the Content for any purpose other than facilitating your intended end-use.

Your employer or client. If you are ordering our services on behalf of your employer or your client then you may permit that entity to use the Content. If you permit your employer or client to use the Content, you certify that you have received authorization that they be bound to this entire Agreement. If such authorization has not been granted to you then they may not use the Content.

c. No claim of authorship. You may not claim you are the author of the Content. In any case where the author of the Content is specified it must be attributed as “DelmarreDesign.Com.”

13. Intellectual property of third parties

a. Intellectual property visible on Merchandise. In some cases, Merchandise you direct us to photograph, or props used in conjunction with that Merchandise, may contain trademarks, logos, artwork, or copyrighted designs that become visible in the finished Content we produce for you at your direction. By directing us to photograph Merchandise containing visible intellectual property, you certify that you either own, or have received explicit permission from the owner, to use any and all trademarks, logos, artwork, or copyrighted designs, visible on all of the Merchandise you have directed us to photograph. By using the Content, you certify that the Content and your use of the Content, does not infringe on the intellectual property rights of any third party. You understand that it is your sole responsibility to obtain necessary permission to use any and all trademarks, logos, artwork, copyrighted designs, or other intellectual property visible withinthe Content.

b. Stock photography and artwork. If stock photography or other artworks owned by third parties are incorporated into the Content we produce for you, we certify that this content has been paid for and/or licensed by us for use in the Content in accordance with the terms of service of the respective supplier. When printing Content containing aforementioned stock photography and artwork, the maximum number of printed copies that may be produced shall not exceed 500,000 print copies. This restriction does not apply to electronic display, such as on a website.

14. Models

We certify that we have obtained appropriate releases from any models depicted in the Content and the Content will not infringe on any moral right, privacy right, or right of publicity of any model depicted within the Content so long as the Content is used in accordance with sections 11 and 12 of this Agreement.

15. No warranties

The Content is provided, to the maximum extent permissible by law, “as-is” with no warranties of any kind, either express or implied, including, but not limited to warranties of merchantability or fitness for a particular purpose. We do not warrant or represent that the Content will meet your requirements or that the Content will be free of errors.

16. Website

a. Access and use of content. Unless noted otherwise, all materials on the Website including text, images, logos, icons, photographs, and any other materials written or otherwise that are part of the Website (collectively, the “Contents”) are copyrighted property owned by DelmarreDesign.com, one of its affiliates, or by third parties who have authorized their materials for use on our Website and are protected by Australian and international copyright laws. Australian and international copyright laws also protect the arrangement of the Contents of this Website and the method of presentation of these materials. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way, in whole or part, any of the Contents, the Website, or any related materials, except that we grant you non-transferrable, non-exclusive, limited permission to access Content and display this Website on your computer or device. This permission is on the condition that you do not modify the Content on this Website, that you keep intact any copyright or trademark notices, and that you accept the terms, conditions and licenses accompanying any Content contained within this Website.

b. Website security Users are strictly prohibited from violating or attempting to violate the security of this Website, including but not limited to: 1. Unauthorized access. Accessing data not intended for a user or logging into any server or account that the user is not authorized to access.

2. Vulnerability scanning. Attempting to scan or test the vulnerability of the Website or any system or network associated with the operation of DelmarreDesign.com

3. Interference. Attempting to interfere, without limitation, with service between the Website and any user, with the secure operation of the Website, or with the stability of the Website via means of submitting a virus to the Website, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Website.

4. Spamming. Sending unsolicited email, including promotions and/or other advertising of products or services.

c. Accuracy. We make every effort to ensure the accuracy of the information contained on this Website. However, we are not liable for typographic errors, pricing errors, omissions, or mistakes that may be present in the content of the Website. If you find an error on our website please contact us so we can fix it.

d. Linked Websites. This Website contains links to third party websites. We do not accept responsibility for any such links and do not endorse or monitor them for content. We shall not be responsible for any damage or loss sustained through the use of these linked websites or their services.

e. Internet transmission problems and viruses. Due to transmission problems or technical difficulties with the Internet or this Website, it is possible for you to receive inaccurate incomplete, or outdated copies of information from this Website. It is also possible for computer viruses or malicious software to affect this Website or be inadvertently downloaded from this Website. We shall not be responsible for any inaccurate or incomplete information delivered to you as a result of a technical or transmission problem. We are also not responsible for any damage caused by malicious software or viruses downloaded in connection with the use of this Website. We recommend you use appropriate commercially available antivirus software to help protect yourself from this type of attack.

17. Refusal of service

If we feel your project is not a good fit, we reserve the right to refuse service and decline the project.

18. Indemnification

You agree to indemnify and hold us and our employees, photographers, and owners, harmless from any losses, including all attorney fees that may result from any claims you make that are prohibited under these Terms due to any Limitation of Liability or other provision. You agree to indemnify, defend, and hold us harmless against any losses, including attorney fees, which result from third-party claims alleging you did something that, if true, would be a violation of any of these Terms.

19. Limitation of liability

You assume full responsibility for any loss that results from your use of our Service or Content to the maximum extent permitted by law. We and our employees, photographers, and owners, are not liable for any indirect, special, punitive, or consequential damages under any circumstances, including delays, even if it’s based on negligence or if we’ve been advised of the possibility of such damages.

20. Injury

By booking a photoshoot with DelmarreDesign you waive or give up certain legal rights, including the right to sue of claim compensation following an accident, now or in the future. You agree to waive any and all claims, and release DelmarreDesign and the photographer from all liability and agree not to sue DelmarreDesign and the photographers for any personal injury, death, property damage or other loss that I sustain during or as a result of a DelmarreDesign photoshoot. You as a client, hereby agree as follows:

  1. To waive all claims that I have or may in the future have against DelmarreDesign and the photographers, and to release DelmarreDesign and the photographers from any and all liability for any loss, damage, expense or injury including death that I may suffer or that my next of kin may suffer as a result of my participation in DelmarreDesign photoshoots, due to any cause whatsoever, including negligence, breach of contract, or breach of any statutory or other duty of care on the part of DelmarreDesign and/or the photographer.
  2. To hold harmless DelmarreDesign and the photographers from any and all liability for any property damages or personal injuries to any third party resulting from my participations photographic activities or related activities to the photoshoot, which might include walking, hiking, climbing, getting on a boat, or other activities that are related to the photoshoot;

21. Theft

DelmarreDesign and the photographer are not responsible for theft during the duration of your photoshoot.

22. Severability

If any of these Terms are found to be unenforceable for any reason, such provision shall be modified only to the extent necessary to make the provision enforceable and all other Terms shall remain in full force and effect. If we choose not to act on a breach of these Terms for whatever reason, it does not constitute a waiver of our rights with respect to such a breach or any subsequent breaches of these Terms.

23. Attorney fees

In the event of litigation, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.

24. Equitable relief

If you violate these Terms we may seek injunctive relief from the courts or other equitable relief.

25. Assignment

You may not assign your rights under these Terms to any other party. However, we may assign our rights to any other entity or individual at our discretion.

26. Governing law

These Terms shall be governed and construed under West Australian law as such law applies to agreements between West Australian residents entered into and to be performed within West Australia and without effect to any West Australian laws regarding conflicts of law. Any action or proceeding arising from these Terms or your use of our Service or Content must be held in West Australia.

27. Entire Agreement

These Terms of Service make up the entire Agreement and supersede all prior agreements, understandings, and representations.

Contacting us

If you have any questions about this Agreement, our Website, or any of our services please direct these inquiries by post to:

Delmarre Design
PO Box 291
Leederville
Western Australia 6903

Or by email to “info@delmarredesign.com

SEE ALSO ‘PRIVACY POLICY’