1.INSTRUCTIONS MUST BE IN WRITING
1.1 The Client must ensure that all instructions and expectations regarding the Booking/Order (and any subsequent variations) are agreed in writing.
2. LICENCE GRANTED TO CLIENT
2.1 Except as may be expressly provided in the Agreement, the copyright in all Photographic Works resulting from the Booking/Order remains the property of the Photographer. The Photographer does not accept commissions to create Photographic Works. These terms override section 21 (3) of the Copyright Act 1994.
2.2 The Client acknowledges that the Photographer always retains the right to use the Photographic Works in any manner at any time and in any part of the world for the purposes of: a) Advertising or otherwise promoting the Photographer’s Work, including through the use of social media; and b) Submitting the Photographic Works for display in art galleries or other premises; and c) Using the Photographic Works for any other purpose within the Photographer’s business activities.
3.CONDITIONS OF LICENCE
3.1 This Licence to use, and the right to use the Photographic Works commences from the date of full payment of all amounts owed to the Photographer in relation to the Photographic Works and the Agreement, except where the Photographer gives express written permission.
3.2 This Licence must not be assigned to any third party without the Photographer’s prior written permission (which shall not be unreasonably refused), but may be sub-licensed by the Client to the Advertiser named in the Agreement (if any) on the same terms and conditions of this Licence (excluding any further right to sublicense).
3.3 The Client is not entitled to manipulate, distort or make other alterations to the Photographic Works (including overprinting by text or other Photographic Works), unless this right is expressly excluded in the Agreement
3.4 Copyright in any new Photographic Works created from any manipulation, alteration, distortion or overprinting of text of the licensed Photographic Works shall remain with the Photographer and shall be licensed to the Client on the same terms and conditions of the Agreement.
3.5 Any breach of the Agreement by the Client (or by the Advertiser, with the Client’s knowledge) which results in damage to the professional reputation of the Photographer, entitles the Photographer to compensation from the Client for that damage in addition to any other remedies available to the Photographer.
4. STORAGE AND BACKUPS
4.1 The Client acknowledges that the Client is responsible for the storage and backup of the Photographic Works supplied by the Photographer. While the Photographer will follow its usual backup procedures (if any) upon delivery of the Photographic Works, the Photographer shall not be liable under any circumstances if unable to produce backups or future reproductions of the Photographic Works upon the request of the Client.
5.PRIVACY AND PERSONAL INFORMATION
5.1 As part of creating the Photographic Works, the Photographer may collect and retain personal information about the Client. The personal information may be used by the Photographer for communicating with the Client for any purpose relating to the Photographic Works (including arranging third party services), direct marketing and in connection with these terms and conditions.
5.2 The Client authorizes the Photographer to collect, retain, use personal information for these purposes (including assessing credit worthiness), and to disclose that information to any person or entity for these purposes.
5.3 Personal information collected by the Photographer shall be retained in the Photographer’s database. The Client may access and request correction of any of the Client’s personal information by contacting the Photographer.
5.4 Where section 105 of the Copyright Act 1994 applies, the Photographer shall obtain any necessary consent in accordance with section 107 of that Act, provided however that the Client agrees that the Photographer has the rights described in clause 2.4 unless those rights are expressly excluded in the Booking/Order.
6.1 The Client shall pay the Photographer the various amounts payable in accordance with the Booking/Order and the Agreement. If the Photographer’s fee and expenses are not estimated in advance, or for any goods or services different or additional to the Booking/Order, then the Client shall pay the amount invoiced by the Photographer in accordance with the Photographer’s Price List. The Photographer may require a deposit or payment of part or all of the amounts due in advance. Unless otherwise specified in the Agreement, payment of all other amounts are due within 7 days of invoice.
7. JOB-RELATED COSTS
7.1 The Client shall reimburse the Photographer for all Job-Related Costs. Where the Photographer makes payment to others on behalf of the Client, the Photographer may add a service charge or commission, determined at the Photographer’s absolute discretion. Unless otherwise specified in the Agreement, the Client must pay all Job-Related Costs and service charges/commissions to the Photographer within 7 days of invoice.
8. OVERDUE PAYMENTS
8.1 In the event that any monies are not paid in full on the due date, the Photographer shall be entitled to: a) Charge interest at a rate of 2.5% per month or part month overdue on any amounts outstanding; b) Recover any debt collection costs and related legal expenses (on a solicitor-client basis); and c) Suspend any further work until all amounts owing and any costs incurred are paid in full.
9.1 When a Booking/Order is confirmed by the Client, the Client becomes liable for payment to the Photographer and the Photographer becomes liable to complete the album.
10.1 The Client undertakes to indemnify the Photographer 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 the Client of the Agreement; b) Any illegal or defamatory Photographic Works produced for the Client; c) Any infringement of an intellectual property right of any person; or d) In recovering any moneys due.
10.2 Such loss, claim, damage or expense shall be moneys due for the purposes of these terms and conditions.
10.3 The Client is responsible for obtaining any authorisation, clearance, licence or other form of approval necessary for the lawful use of third party intellectual property works.
11. COLOUR VARIATION
11.1 Where the Photographer supplies the Client with photographic prints/album, the Client acknowledges that Photographic Works may fade or discolour over time due to the inherent qualities of materials used, and releases the Photographer from any liability for any claim based upon fading or discolouration. Where a colour is unable to be reproduced accurately due to limitations in capture and output technology, the Client releases the Photographer from any and all liability in regard to colour reproduction.
12. QUALITY OF PHOTOGRAPHIC WORKS
12.1 If the Photographer produces Photographic Works that are in the same style and structure as the Photographer’s past work (by reference to the Photographer’s portfolio), the Client is deemed to have accepted the Photographer’s artistic interpretation.
13. CONSUMER GUARANTEES ACT 1993
13.1 The Consumer Guarantees Act 1993 may apply to the Photographic Works provided by the Photographer, if the Client acquires those Photographic Works for personal, domestic or household use or consumption. If this Act applies, nothing in the Agreement will limit or exclude the Client’s rights under this Act.
13.2 If the Client is acquiring the Photographic Works for business or trade purposes, then the Client’s rights are subject to the Agreement only and the Consumer Guarantees Act 1993 shall not apply.
14. PHOTOGRAPHER NOT LIABLE FOR LOSSES
14.1 Except as provided by the Consumer Guarantees Act 1993, the Photographer shall not be liable for: a) Any loss or damage arising by reason of any delay in the completion of the Photographic Works; or b) Any loss of profits or revenues; or c) Any indirect or consequential loss of whatever nature; or d) Any loss resulting from any errors or omissions arising from an oversight or a misinterpretation of a Client’s verbal instructions.
15. LIABILITY OF PHOTOGRAPHER LIMITED
15.1 Subject to clause 13, the Photographer’s liability to the Client for any and all costs, loss or damage suffered by the Client, however caused (including negligence), arising out of or connected with the performance or failure of performance of any Photographic Works or photographic services supplied by the Photographer, shall not exceed the full value of the payments made by the Client under the Agreement.
16. FORCE MAJEURE
16.1 Except for an obligation to pay money, neither the Client nor the Photographer shall be liable for any act, omission or failure to fulfil its obligations, or any loss or damage arising directly or indirectly due to an act of God, explosion, fire, flood, storm, earthquake, subsidence, armed conflict, strike, lockout or labour disputes, civil commotion, intervention of a government, accidents, electrical, heat, light or telecommunication failures, interruption to transportation, weather or any other cause outside the Photographer’s control.
17. DISPUTE RESOLUTION
17.1 The Photographer and the Client agree to use their best efforts to resolve any dispute which arises through good faith negotiations.
17.2 Either party may raise a dispute by written notice to the other party. Within 3 working days of receipt of a dispute notice, the parties shall meet (or otherwise communicate if meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis.
17.3 Neither party may commence any litigation in relation to the dispute unless 14 days have passed since the parties met (or otherwise communicated) and endeavoured in good faith to resolve the dispute on mutually acceptable terms.
18.1 In the event of a conflict or inconsistency between these terms and conditions and the Booking/Order, the Booking/Order shall prevail.
19. GOVERNING LAW
19.1 These terms and conditions are governed by, and to be construed in accordance with New Zealand Law. The Client irrevocably submits to the exclusive jurisdiction of the New Zealand courts.
20.1 Once the Client has signed off the album to be printed, the Client agrees that the Photographer will not be held accountable for any errors, A change of mind or be held responsible for images left out by the Client. Once the album has arrived, the Client has 14 days to contact the Photographer about any errors or faults with the album.
20.2 The Client acknowledges that the Photographer takes no responsibility for any delays/error by the album supplier or courier.
20.3 The Client agrees that no images will be included in the album that are not created by the Photographer
21. ENTIRE AGREEMENT
21.1 The Booking/Order, together with these standard terms and conditions and any other special conditions agreed in writing between the parties, shall constitute the entire Agreement between the parties.
21.2 Each Booking/Order made by the Client shall (together with these standard terms and conditions and any other special conditions agreed in writing between the parties) constitute a separate Agreement between the parties.
For the purposes of the Agreement, the following definitions shall apply unlessthe context requires otherwise:
Advertiser: means the end user of the Photographic Works where the Photographer is engaged to produce the Photographic Works by an advertising agency, design firm, or other intermediary.
Agreement: means the Booking/Order, together with these standard terms and conditions and any other special conditions agreed in writing between the parties.
Booking/Order: means an order or request by the Client for the production, supply or viewing of Photographic Works, including (without limitation) bookings, orders, quotes, estimates, proposals, and appointments made for a shoot, sitting or viewing.
Client: means the person or entity listed on the Booking/Order who engages or instructs the Photographer to produce Photographic Works.
Job-Related Costs: means any costs and expenses incurred by the Photographer on the Client’s behalf in providing photographic services or in the creation of the Photographic Works.
Licence: is a right granted by the Photographer to the Client to use the copyright works of the Photographer on the terms set out above.
Photographic Works: means the deliverable works specified in the Booking/ Order and created or supplied by the Photographer, including photographs, photographic prints, moving images (video), transparencies, negatives, digital files, and images in any form or medium.
Photographer: means the photographer and where the context requires may include, the studio, photographic company, employees or sub-contractors.
Price List: means the Photographer’s list or schedule of prices for goods and services at the date of the Agreement.
Retainer To Be Paid Upon Booking: 50%. This booking fee commences the design process of the album and is non-refundable. The final payment is due before printing. Please Note: each payment is non-refundable and non-transferable.
Stephens Creative Ltd, 06-0489-0776540-01
Details on Statement
Reference: Name Code: Album Part 1/Final
I/We the Client accepts and agrees with all the details and conditions written above and also acknowledge that I/we have had an opportunity to read the above contract.