Additional Terms & Conditions
Client agrees that the photo shoot and the photos or/and videos derived from the photo shoot will not be used for commercial purposes by the Client e.g product endorsement, advertisements, advertorials.
Provider means ASYRAFLEE DOT COM.
Quotation means the entire content of this Service Scope section, Terms & Conditions section, Fees section, Schedule section, together with any exhibits, or attached hereto.
Client Content means all materials, information, writings, and other creative content provided by the Client for use in the preparation of and/or incorporation of the Deliverables.
Copyrights means the property rights in the original works of authorship, expressed in a tangible medium of expression, as define and enforceable under Australian Copyright Act 1968 & Malaysian Copyright Act 1987 .
Deliverables means the services and work product specified in the Quotation to be delivered by the Provider to the Client, in the form and media specified in the Quotation.
Photographer Tools mean that all tools developed and/or utilized by the Provider in performing the Services, including without limitation, raw images, layers, album design, pre-existing and newly developed software.
Final Art means all the creative content developed or created by the Provider, or commissioned by the Provider, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables.
Final Deliverables/Final Photos/Final Videos means that the final version of Deliverables provided by the Provider and accepted by the Client.
Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual representations, or other alternate or preliminary documents developed by the Provider and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Quotation.
Services mean all services and the work product to be provided to Client by the Provider as described and otherwise further defined in the Quotation.
Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation, illustrations and written concepts.
Trademarks mean trade names, words, symbols, designs, logos or other devices used in the Final Deliverables to designate the origin or source of the goods and services of the Client.
Outtakes mean photographs or videos that were recorded, filmed or captured but not used in the final version, Products or Deliverables.
Personal Usage mean usage of final product(s) be it photographs or/and video supplied by the Provider are for personal usage and circulation on the basis of personal usage only. Usages not considered as personal usage are for the intent & purpose of but not limited to; commercialism, product or/and services or/and brand endorsement or/and promotions, use by any kind of commercial entity.
EFFECTIVE PERIOD
The terms of the Quotation shall be effective for 14 days from the date stated on the quotation. In the event that this Quotation is not executed by the Client within the time identified, the Quotation, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
EXPENSES
Client will be responsible to reimburse expenses and additional cost incurred while carrying out the process of photography and other services subject to approval is first obtained from the client for the additional cost or expenses incurred and subject to all receipts for the expenses is produced by the provider. The invoice may reflect and the Client is bound, by sms/written authorization for expenses and services.
Expenses include but not limited to; transportation cost, driver fee, meals, third party services, toll fare, printing, parking fee, framing, retouching services, outstation costs, additional personnel, airfare, visas, additional equipment and accommodation costs
CHANGES
Unless otherwise provided in the Quotation, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by the Client, which are outside the scope of Services on a time and material basis. Such charges shall be in addition to all other amounts payable under the Quotation, despite any maximum budget, contract price or final price indentified therein. The Provider may extend or modify any delivery schedule or deadlines in the Quotation and Deliverables as may be required by such changes.
If client request of instructs Changes that amount to a revision in or near excess of 10% of the time required to produce the Deliverables, and or the value or scope of the Services, the Provider shall be entitled to submit a new and separate Quotation to Client with written approval. Work shall not begin on the revised services until fully signed revised Quotation and, if required, any additional retainer fees are received by the Provider.
The Provider will prioritize performance of the Services as may be necessary or as identified in the Quotation, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Quotation. Client agrees to review Deliverables within the time identified for such reviews and to promptly either,
(i) approve the Deliverables in writing or
(ii) provide written comments and/or corrections to the Provider. the Provider shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that the Provider’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performances of its obligations to provide materials and written approvals and/or instructions pursuant to the Quotation and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by the Client shall not constitute a breach of any term, conditions or the Provider‘s obligation under this Quotation.The Provider will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the Client.
Client, within two (2) days of receipt of each Deliverable, shall notify the Provider, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Quotation, or any other objections, corrections, changes or amendments Client wishes made to such Deliverable.
Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and the Provider will undertake to make the same in a commercially timely manner.
Any and all objections, corrections, changes and amendments shall be subject to the terms and conditions of this Quotation. In the absence of such notice from the Client, the Deliverable shall be deemed accepted.
CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner;
(a) coordination of any decision-making with parties other than the Provider.
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Quotation; and
(c) final proofing and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, blemishes or element not removed from photograph, remain in the finished product, Client shall incur the cost of correcting such errors.
COPYRIGHT
6.1. The copyright belongs to the Provider.
ACCREDITATION AND PROMOTIONS
The provider retains the right to reproduce, publish and display the deliverables on the Provider’s portfolios and websites, and in galleries, magazines, newspapers, and other media or exhibits for the purpose of recognition of creative excellence or professional advancement, and to be credited with authorship of Deliverables in connection with such uses subject to the copyright of the client is not breach. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project, and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
CONFIDENTIAL INFORMATION
Each party acknowledge that in connection with this Quotation it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary works (“Confidential Information”).
Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information except as may be necessary to perform its obligations under the Quotation except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
RELATIONSHIP OF THE PARTIES
The Provider is an independent contractor, not an employee of Client or any company affiliated with Client. The Provider shall provide the Services under the general direction of Client, but the Provider shall determine, in the Provider‘s sole discretion, the manner and means by which the Services are accomplished. This Quotation does not create a partnership or a joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Quotation. The Provider and the work product or Deliverables prepared by the Provider shall not be deemed a work for hire as that term is defined in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Quotation.
The Provider shall be permitted to engage and/or use third party photography companies or other service provides as independent contractors in connection with the Services (“The Provider’s Agents”). Notwithstanding, the Provider shall remain fully responsible for such the Provider’s Agents’ compliance with the various terms and conditions of this Quotation.
The parties expressly acknowledge that this Quotation does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by the Provider, and the Provider shall be entitled to offer and provide services to other parties, solicit other clients and otherwise advertise the services offered by the Provider.
WARRANTIES AND REPRESENTATIONS
By Client: Client represents, warrants and covenants to the Provider that;
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of Client Content
(b) to the best of Client’s knowledge, the client content does not infringe the right of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties.
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all lawns and regulations as they relate to the Services and Deliverables.By Provider:
(a) The Provider hereby represents, warrants and covenants to Client that the Provider will provide the Services indentified in the Quotation in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) The Provider further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of the Provider and/or its independent contractors. (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by www.asyraflee.com , the Provider shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for the Provider to grant the intellectual property rights provided in this Quotation, and (iii) to the best of the Provider’s knowledge, the Final Art provided by the Provider and its subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Quotation or contrary to the terms and conditions noted herein, all representation and warranties of the Provider shall be void.
(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS QUOTATION, THE PROVIDER MAKES NO WARRANTES WHATSOEVER, THE PROVIDER EXPLICITYLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECTS.
INDEMNIFICATION AND LIABILITY
By Client:
Client agrees to indemnify, save and hold harmless the Provider from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Quotation. Under such circumstances, the Provider shall promptly notify Client in writing of any claim or suit:
(a) Client has sole control of the defense and all related settlement negotiations, and
(b) The Provider provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by the Provider in providing such assistances.
By the Provider:
Subject to the terms, conditions, express representations and warranties provided in this Quotation, the Provider agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with the Provider, representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that:
(a) client promptly notifies the Provider in writing of the claim
(b) The Provider shall have sole control of the defense and all related settlement negotiations, and
(c) Client shall provide the Provider with the assistance, information, and authority necessary to perform the Provider’s obligations under this section. Notwithstanding the foregoing, the Provider shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by the Provider.
LIMITATION OF LIABILITY
In the event(s) outside of the control of the Provider, such as but not limited to, act of God, accident, theft, loss of data due to technical failure, death, power failure, the Provider will not be held liable for any damages caused and for any losses incurred.
TERM AND TERMINATION
This Quotation shall commence upon the effective date and shall remain effective until the services are completed and delivered in accordance with the standards required and agreed. This quotation may be terminated by either party (Client or Provider) forthwith upon notice in the event of any breach of the terms and conditions contained herein.
This Quotation may be terminated by the Client effective immediately upon notice, only if the Client;
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Quotation, which breach is not remedied within 10 days from receipt of written notice of such breach.This Quotation may be terminated by the Provider effective immediately upon notice.
In the event of termination, the Provider shall be compensated for the Services performed through the date of termination in the amount of
(a) any advance payment
(b) a prorated portion of the fees due, or
(c) hourly fees for work performed by the Provider or the Provider’s agents as of the date of termination, whichever is greater: and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.In the event of termination by Client and upon full payment of compensation as provided herein, the Provider grants Client such right and title as provided for in Schedule of this Quotation with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
Upon expiration or termination of this Quotation.
(a) Each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and
(b) Other than as provided herein, all rights and obligations of each party under this Quotation, exclusive of the Services, shall survive.
GENERAL
Modification/Waiver: This Quotation may be modified by the parties. Any modification of this Quotation must be in writing, except that the Provider’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail or orally, in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Quotation shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as waiver of any breach.
Notices: All notices to be given hereunder shall be transmitted in writing either by electronic mail or short messaging system with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the cash of email, upon confirmation of receipt.
No Assignment: Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Quotation or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
Force Majeure: The Provider shall not be deemed in breach of this Quotation if the Provider is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of the Provider or any local, state, federal, national or international law, governmental order or regulation or any other event beyond the control of the Provider (collectively, “Force Majeure”). Upon occurrence of any Force Majeure event, the Provider shall give notice to the Client of its inability to perform or of delay in completing the Services and shall propose revision to the schedule for the completion of the Services.
Governing Laws and Dispute Resolution: The formation, construction, performance and enforcement of this Quotation shall be in accordance with the laws of Malaysia without regard to ifs conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Quotation, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the Kuala Lumpur Regional Center for Arbitration, or other forum mutually agreed by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fee and cost. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Wilayah Persekutuan Kuala Lumpur. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. Client acknowledges that the Provider will have no adequate remedy at law in the event Client uses the deliverables injunction, or such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Severability: Whenever possible, each provision of this Quotation shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Quotation is held invalid or unenforceable, the remainder of this Quotation shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
Headings: The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent, or interpretation of the provisions of this Quotation nor shall such headings otherwise be given any legal effect.
Integration: This Quotation comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understands and discussions between the parties relating to the subject matter of this Quotation. In the event of a conflict between the Quotation and any other documents, the terms of the Quotation shall control. This Quotation consist Service Scope section, Terms & Conditions section, Fees section, Schedule section, together with any exhibits, or attached hereto.
PAYMENT TERMS
Default payment method is online bank transfer. A 5% surcharge may be applicable other methods of payments. If different payment method is preferred by the Client, kindly please advise the Provider of the choice payment method before making any payments
It is the absolute obligation of the Client to pay the Provider in full, when payments are due.
20% surcharge per month is applicable for any overdue balances, commencing from the 3rd month of overdue (e.g. if payment due by 31st of August and payment is not made by then, surcharge will only apply from 31st December onwards.)