Terms & Conditions - Mini Studio Photography
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 Photographer grants the Client a non–exclusive Licence to use those
parts of the Photographic Works selected by the Photographer and presented
to the Client. The Licence includes the right (if any) to reproduce
the Photographic Works for the purposes, territories and time periods
specified in the Booking/Order, subject to these terms and conditions.
The Client shall have the right to seek further Licences for use or reuse of
any Photographic Works, which shall not be unreasonably refused by the
Photographer but is subject to agreement of a reasonable fee for that Licence.
2.3 If the Photographic Works have been produced for an Advertiser named in the
Agreement, the Photographic Works may only be used by the Advertiser. The
Client must ensure that the Advertiser complies with the Client’s obligations
and all other terms and conditions of the Agreement.
2.4 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) Entering the Photographic Works into photographic competitions or awards
and for their use in any material published in connection with promoting
those competitions or awards; and
b) Advertising or otherwise promoting the Photographer’s Work, including
through the use of social media; and
c) Submitting the Photographic Works for display in art galleries or other
premises; and
d) 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 sublicensed 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 entitled to:
a) 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; and
b) Use only a portion of the Photographic Works.
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. ASSIGNMENT OF COPYRIGHT
4.1 Where the Agreement specifies that copyright in the Photographic Works is
assigned to the Client in consideration for the Client’s payment for those Works:
a) The Photographer assigns to the Client copyright in the Photographic
Works from the date of full payment of all amounts owed to the
Photographer in relation to the Photographic Works and the Agreement;
b) It is the responsibility of the Client to obtain all model releases, moral right
waivers and privacy waivers necessary for the use of the Photographic Works;
c) The Client agrees to indemnify the Photographer in respect of any loss,
claims, damages or expenses (including costs incurred on a solicitor
client basis) incurred by the Photographer arising from any use of the
Photographic Works; and
d) The Photographer retains the rights described in clause 2.4 and clause 5
of these terms and conditions.
5. MORAL RIGHTS
5.1 The Photographer asserts moral rights, including attribution rights, in respect
of the Photographic Works (unless expressly waived in the Agreement in
writing). Each use of any Photographic Work by the Client, including where
the Client publishes or otherwise uses the Photographic Works on social
media, must be accompanied by an adjacent credit line acknowledging the
Photographer’s name and copyright in the Photographic Works in the form
specified in the Agreement, or if not so specified, then in a form approved in
writing by the Photographer.
5.2 If the Client fails (for whatever reason) to provide the attribution described in
clause 5.1, then in addition to all other rights under the Agreement or at law,
the Client shall be liable to pay a non-attribution fee calculated at 200% of the
Photographer’s fee, which the Client acknowledges and agrees to be a fair and
reasonable pre-estimate of the loss suffered by the Photographer.
6. DATA PRESERVATION
6.1 The Client’s right to use the Photographic Works under the Licence does not
include the right to remove, alter or otherwise affect any rights information
accompanying or relating to the Photographic Works, including (without
limitation) any notices or metadata accompanying or part of the Photographic
Works recording creator details, copyright ownership or publication status
of the Photographic Works. The Client shall not alter or remove any notices
attached to the Photographic Works and shall take all reasonable steps to
respect and preserve the Photographer’s copyright and other rights. Where the
Photographer has placed restrictions on access to or use of the Photographic
Works, the Client shall not defeat (or attempt to defeat) such restrictions.
7. STORAGE AND BACKUPS
7.1 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. Where backups are
available, these may be made available to the Client for a fee.
8. PRIVACY AND PERSONAL INFORMATION
8.1 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.
8.2 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.
8.3 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.
8.4 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.
9. PAYMENT
9.1 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.
9.2 All payments made towards the services of the Photographer by the Client
are non-refundable. The Client can request a reschedule within a minimum of
48hours of the scheduled service date. After this timeframe, the photographer
reserves the right to retain all monies for business lost. Where appropriate
reschedule communication has been followed, the Photographer will accommodate
the client at their discretion to fulfil the paid service.
10. JOB-RELATED COSTS
10.1 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. The Client is not
entitled to any property in:
a) Any artistic works or other materials created or supplied by the
Photographer to support the Photographic Works; or
b) Any materials used for the creation of an artistic work, which are
commissioned or arranged by the Photographer; or
c) Any goods used in supporting the Photographic Works 10.2 Such goods, materials, authored or artistic works shall remain the property of
the Photographer, unless otherwise specified in the Agreement.
11. URGENT WORK
11.1 Where the Client requires Photographic Works on an urgent basis (which
includes where the Photographer is unable to re-shoot or correct a shot
because of an urgent deadline) the Photographer will not be liable for any
losses or damages arising out of the inability to carry out a re-shoot or the
costs of arranging a re-shoot.
12. CHANGES TO THE ESTIMATE
12.1 Estimates of fees and Job-Related Costs are estimates and not firm quotations and
are liable to alteration. The Photographer must bring any increase to the estimate,
of 10% or more, to the attention of the Client. Any change to the job specifications
made or agreed by the Client may alter the fees and Job-Related Costs.
13. OVERDUE PAYMENTS
13.1 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.
14. CANCELLATION & RESCHEDULING
14.1 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 shoot.
14.2 Cancellation of the Booking/Order by the Client must be in writing. Postponements are treated
as a cancellation unless a reschedule is expressly agreed at the discretion of the Photographer. Where a
reschedule is approved, a reschedule fee of fifty percent (50%) of the original Session Fee will be
charged, regardless of the amount of notice given. Reschedules are not guaranteed and are subject
to the availability of alternative session dates or events.
14.3 Subject to any specific terms in the Agreement, if the Client cancels the Booking/Order outright:
a) Within 1 working day of the booked shoot day, the Client must pay a fee of 100% of the Session Fee.
b) Giving notice of cancellation of greater than 1 working day and within 3 working days of the booked
shoot day, the Client must pay a fee of 50% of the Session Fee.
c) Giving notice of cancellation of greater than 3 working days and within 1 week of the booked
shoot day, the Client must pay a fee of 25% of the Session Fee.
d) The Client must pay the Photographer for all Job-Related Costs incurred, in addition to any
cancellation or reschedule fees.
14.4 For Mini Sessions, due to their limited nature, all payments are strictly non-refundable and not
transferable. Reschedules are only offered at the sole discretion of the Photographer, subject to the
reschedule fee described in 14.2.
14.5 In cases of genuine illness or emergency, the Photographer may, at their sole discretion,
waive or reduce cancellation or reschedule fees.
14.6 If the Photographer is unable to attend a session due to illness, accident, or other circumstances
beyond their reasonable control, the session will be rescheduled to the earliest available date.
All monies paid by the Client will be applied to the rescheduled session. Refunds are not provided
under any circumstances.
14.7 The Client acknowledges and agrees that these cancellation and reschedule fees fairly reflect
the loss suffered by the Photographer and the Photographer’s ability to re-schedule work and re-allocate
resources, depending upon the amount of notice given.
15. POSTPONEMENT
15.1 Subject to any specific terms in the Agreement, if the Client postpones or
changes the date of the Booking/Order, the following shall apply:
a) Within 1 working day of the booked shoot day, the Client must pay a fee of
100% of the Photographer’s daily fee for each day which is postponed.
b) With more than 1 working days’ notice, the Client must pay a fee of 100%
of the Photographer’s daily fee for each day which is postponed.
c) The Client must pay the Photographer for all Job-Related Costs incurred.
15.2 The Client acknowledges and agrees that these cancellation fees fairly reflect the
loss suffered by the Photographer and the Photographer’s ability to re-schedule
work and re-allocate resources, depending upon the amount of notice given.
16. WEATHER CONDITIONS
16.1 A weather-permitting booking must be agreed between the Client and
Photographer prior to the shoot. Upon postponement or cancellation of a
shoot due to bad weather the Client must pay the Photographer all Job Related Costs incurred
up until the time that the shoot was postponed and 100% of the Photographer’s fee which was to be charged for the shoot. The
Client is responsible for taking out weather insurance.
17. WORK SUSPENDED ON CLIENT’S INSTRUCTIONS
17.1 Where the Client instructs that work is to be suspended for a period of
30 days or more, the Client must, at the time of suspension, pay the
Photographer for all work in progress and any Job-Related Costs incurred at
that time.
18. RESPONSIBILITY FOR CONTRACTORS
18.1 The Client is responsible for making all payments (including rollover fees) and
fulfilling all other obligations to contractors.
18.2 Where contractors are models, the Client is responsible for obtaining all
necessary model releases. To ensure proper recording of others’ intellectual
property rights, which may be part of the Photographic Works, the Client shall,
on a request by the Photographer, provide evidence of these model releases
to the Photographer.
18.3 Where the Client requests the Photographer to engage contractors, the
Photographer shall do so as agent for the Client and the Client indemnifies the
Photographer against all costs, disbursements and other obligations arising
from that agency.
19. CLIENT PROPERTY AND MATERIALS
19.1 Client property and all property and material supplied to the Photographer by or
on behalf of the Client is held at the Client’s risk and the Photographer accepts
no responsibility for the maintenance or insurance of that property or material.
19.2 The Client must pay any sum charged or incurred by the Photographer for
handling or storing property or material supplied by or on behalf of the Client.
19.3 Where property and materials are left with the Photographer without specific
instructions, the Photographer may dispose of them at the end of six months
from the date of receiving them and retain the proceeds.
20. CLIENT CONFIDENTIALITY
20.1 The Client must advise the Photographer as to whether any material or
information supplied is of a confidential nature. The Photographer will
keep that material or information confidential, except where disclosure is
reasonably necessary to enable the Photographer to perform the Agreement.
21. INDEMNITY
21.1 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.
21.2 Such loss, claim, damage or expense shall be moneys due for the purposes of
these terms and conditions.
21.3 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.
22. COLOUR VARIATION
22.1 The Client releases the Photographer from any and all liability relating to
colour reproduction of supplied works on any system not under the direct
control of the Photographer. Where the Photographer supplies the Client with
photographic prints, 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.
23. QUALITY OF PHOTOGRAPHIC WORKS
23.1 Where Photographic Works are not of an acceptable technical quality, making it
unfit for the purpose of its specified use, then no fee or Job-Related Costs are
due to the Photographer. The Photographer has the right to rectify the defect
within a reasonable time, having regard to the urgency of the work. If rectified,
the Photographer is entitled to be paid the full fee and Job-Related Costs, but
may not charge the Client any extra fee or cost for rectifying the defect.
23.2 Where there is a representative of the Client at the shoot, the representative
is responsible for the direction of the work. Acceptance of the work by this
representative is confirmation that the Photographer has satisfied the artistic
quality and interpretation requirements of the shoot. If the representative is not at
the shoot then the Photographer’s judgement is absolute within the limits (if any)
imposed by any documented agreements on the nature of the intended work.
23.3 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.
23.4 If there is a dispute as to artistic interpretation, which is unresolved after
good faith discussions between the Photographer and the Client, and where
the Photographer is a member of a recognised photographic association or
society, the chief executive (or equivalent) of that association or society shall
determine the dispute. That decision shall be final and binding.
24. CONSUMER GUARANTEES ACT 1993
24.1 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.
24.2 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.
25. PHOTOGRAPHER NOT LIABLE FOR LOSSES
25.1 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.
26. LIABILITY OF PHOTOGRAPHER LIMITED
26.1 Subject to clause 24, 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.
27. HEALTH AND SAFETY
27.1 The Client acknowledges and agrees that the Client is responsible for, and
shall take all reasonably necessary steps to ensure, its own personal safety
and that no action or inaction of the Client causes harm or risk to the health
and safety of others. Notwithstanding the above, the Client agrees to comply
with any reasonable health and safety directions given by the Photographer.
28. FORCE MAJEURE
28.1 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.
29. DISPUTE RESOLUTION
29.1 The Photographer and the Client agree to use their best efforts to resolve any
dispute which arises through good faith negotiations.
29.2 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.
29.3 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.
30. CONFLICTS
30.1 In the event of a conflict or inconsistency between these terms and conditions
and the Booking/Order, the Booking/Order shall prevail.
31. GOVERNING LAW
31.1 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.
32. ENTIRE AGREEMENT
32.1 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.
32.2 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.
33. GIFT VOUCHERS
33.1 All bookings are made subject to availability and change. Gift Vouchers are
non-transferable, non-refundable and cannot be exchanged for cash. No change or
certificate can be issued for unused differences. The actual Gift Voucher must be
presented for validation on arrival. Any reservation made using your Gift Voucher will
be subject to our normal booking policy. Gift Vouchers will be automatically
redeemed in the case of a no-show. Supplements may apply to certain services.
We are not responsible if a Gift Voucher is lost, stolen, destroyed, or used without permission.
Gift Vouchers are valid for 12 months from purchase date.
DEFINITIONS
For the purposes of the Agreement, the following definitions shall apply unless
the 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.