TERMS OF AGREEMENT
Last Updated on 19/12/2018
STANDARD PHOTOGRAPHIC WEDDING & PORTRAIT TERMS & CONDITIONS OF ENGAGEMENT (The "Agreement")
DEFINITIONS
"Photographic Works": Includes photographic prints, transparencies, negatives and digital images created by the Photographer.
"Photographer": Means the photographer providing the services under this Booking or Order agreement and where the context requires may include, the studio, photographic company, employees or sub-contractors.
"Client": Means the client listed on the Booking or Order agreement .
"Order": Includes an order placed by the Client for the production of Photographic Works, an invoice or statement.
"Vendor": Includes any business or contracted party providing products or services to the Client with respect to the Booking.
"Booking": Includes appointments made for a shoot, sitting, viewing and any other meeting where the Photographer has set aside specific time to meet with or do work for the Client.
1. ENTIRE AGREEMENT: This Agreement contains the entire understanding between the Photographer and the Clients. It supersedes all prior and simultaneous agreements between the Parties. The only way to add or change this Agreement is to do so in writing, signed by all the Parties. If the Parties want to waive one provision of this Agreement that does not mean that any other provision is also waived.
2. LICENCE GRANTED TO CLIENT: The copyright in all Photographic Works resulting from the Booking or Order remains the property of the Photographer. The Photographer does not accept commissions to create Photographic Works. The Photographer and the Client have agreed by these standard terms to override section 21(3) of the Copyright Act 1994. 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 , however this Licence does not include the right to copy, reproduce or publish the Photographic Works or any part of the Photographic Works. The Client may license any or all of the Photographic Works from the Photographer’s selection. The Client acknowledges that the purpose of the creation of the Photographic Works includes the right of the Photographer to: (a) Enter 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) Advertise or otherwise promote the Photographer’s Work; and (c) Submit the Photographic Works for display at art galleries or other premises; and (d) Use the Photographic Works for any other purpose within the Photographer’s business activities.
3. CONDITIONS OF LICENCE: This Licence to use, and the right to use, the Photographic Works comes into effect from the date of full payment of the Order, except where the Photographer gives express written permission.
4. COPYRIGHT IN THE WORKS: All copyright that arises out of the performance of the Photographer’s obligations under this contract shall arise not by commission but shall be the creation of the Photographer. The Photographer shall remain the first owner of the Photographic Works and the Client shall be supplied with the Photographic Works for use on the basis of the terms of this Licence. The Client shall have the right to seek further licences for reuse of any copyright at the Photographers normal prices at the time of the request.
- The Photographic Works are the property of the Clients for personal use and for the purposes of the reproduction and sharing of photographs to friends and relatives, including through social media.
- The Clients must obtain written permission from, and compensate the Photographer, prior to the Clients or their friends and relatives or their vendors publishing or selling the Photographic Works for profit.
- The Photographer will reserve the right to use the Photographic Works for promotional purposes.
- The Photographic Works may not be altered in any way - including cropping - without written permission from the Photographer.
5. MODEL RELEASE: The Client grants to the Photographer the irrevocable and unrestricted right to use and publish the Photographic Works of the Client & Subject for promotional purposes at the discretion of the Photographer. The Client releases the Photographer from all and any claims and liability relating to these same Photographic Works.
The Client acknowledges that the purpose of the creation of the Photographic Works includes the right of the Photographer to:
- enter the Photographic Works into photography competitions or awards and for their use in any material published about promoting those competitions or awards; and
- advertise or otherwise promote the Photographer’s Work, including on social media websites and apps; and
- submit the Photographic Works for display at art galleries or other premises; and
- use the Photographic Works for any other purpose within the Photographer’s business activities.
The Client can request to have this clause revoked for a fee at the discretion of the Photographer.
6. PRIVACY AND PERSONAL INFORMATION: The Photographer shall abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection.
7. MORAL RIGHTS: The Photographer asserts his or her moral rights in respect of the Photographic Works and any reference to the Photographic Works shall be accompanied by full attribution to the Photographer in a form to be approved by the Photographer.
8. PAYMENT: The Client shall pay the Photographer the various amounts payable in accordance with the Booking and/or Order agreement(s).
9. RESERVATION: A signed Agreement and Non-Refundable Retainer are required to reserve the Specified Coverage. Upon your signature, the Photographer will reserve the Time and Date agreed upon, and will not make other reservation for that Time and Date. For this reason, the Retainer of 50% is non-refundable, even if the date is changed or the Wedding is cancelled for any reason; including Acts of God.
10. INTEREST: Any monies not paid in full in accordance with clause 8 may be charged with interest at a rate of 2% per month or part month overdue.
11. INDEMNITY: The Client undertakes to indemnify the Photographer for any loss, damage, or expense (including costs as between solicitor client basis) suffered or incurred as a result of any breach by the Client of these conditions or in recovering any moneys due and such loss, damage or expense shall be moneys due for the purposes of these terms and conditions.
12. CANCELLATION OF BOOKING: Where the Client cancels a Booking appointment, the Client must pay, at the Photographer’s discretion, the amounts that have already been invoiced or are due as outlined on the Booking agreement, regardless of whether the appointment is attended or not. Where a booked appointment involves more than one person, it is the Client’s responsibility to ensure that everyone required arrives at the appointment on time. Failure of any person to arrive at the appointment on time will result in, at the Photographer’s discretion, cancellation or postponement. If the Client cancels a Booking appointment more than 30 days out from the event, only the Non-Refundable Retainer is forfeit.
13. POSTPONEMENT OF BOOKING: Where the Client postpones a Booking appointment, the Photographer has no obligation to commit to photographing on any other date than the Wedding Date specified in this Agreement. If the Clients change the date of their wedding they are obliged to negotiate an alternative date in a separate agreement. The Non-Refundable Retainer for the original Wedding Date will not be refunded in an event where a negotiated Postponement Date is not available. If the Client and Photographer agree upon a mutually acceptable new Booking Date, the original Non-Refundable Retainer can be applied to the new Booking Date.
14. CLIENT CONFIDENTIALITY: The Client must advise the Photographer as to whether any material or information communicated to him/her is of a confidential nature. The Photographer will keep confidential material or information communicated to him/her in confidence for the purposes of the photography, except where it is reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the Booking or Order.
15. INDEMNITY FOR BREACHES OF INTELLECTUAL PROPERTY: The Client shall fully indemnify the Photographer in respect of any claims, costs, or expenses arising out of any illegal or defamatory Photographic Works produced for the Client or any infringement of an intellectual property right of any person.
16. PRE-EVENT CONSULTATION: The Parties agree to a pre-event consultation before the Wedding Date in order to finalise the details relating to the Booking. The Photographer may be able to attend the Client’s wedding rehearsal, but this is subject to change at any time.
17. COLOUR VARIATION: The Client acknowledges that Photographic Works may fade or discolour over time due to the inherent qualities of materials used. The Client releases the Photographer from any liability for any claim based upon fading or discolouration.
18. IMPORTANT NOTICE – CONSUMER GUARANTEES ACT 1993: The Consumer Guarantees Act 1993 may apply to the licensed Photographic Works provided by the Photographer if the Client acquires those licensed Photographic Works for personal, domestic or household use or consumption. If this Act applies, nothing in these Standard Terms will limit or exclude the Client’s rights under this Act . If the Client is acquiring the licensed Photographic Works for business purposes, then the Client’s rights are subject to these standard terms only and the Consumer Guarantees Act 1993 shall not apply. In this case the Photographer may grant a separate licence under the Standard Terms for Commercial Photography.
19. PHOTOGRAPHER NOT LIABLE FOR LOSSES: Except as provided for 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 (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 arising directly or indirectly from any breach by the Photographer of any of its obligations under the Booking or Order or from any cancellation of the Booking or Order or from any negligence on the part of Photographer.
20. LIABILITY OF PHOTOGRAPHER LIMITED: The Photographer’s liability to the Client for any and all costs, loss or damage suffered by the Client , however caused, arising out of or connected with the performance or failure of performance of photographic services by the Photographer, except where provided to the contrary by the Consumer Guarantees Act, shall not exceed the full value of the payments made by the Client under the Booking and/or Order agreements.
21. ORDER MAY BE TERMINATED ON NOTICE: Effective termination of the Order by the Client must be in writing and give reasonable notice to the Photographer. The Client must compensate the Photographer for all amounts due in accordance with the Order Agreement (including the proportion of the Order that has been completed at the date of termination). Upon receipt of such notice from the Client, the Photographer must take immediate steps to bring the photographic services to a close.
22. FORCE MAJEURE: Neither the Client nor the Photographer shall be liable for any loss or damage arising directly or indirectly due to an act of God, fire, armed conflict, labour disputes, civil commotion, intervention of a government, accidents, interruption to transportation, weather or any other cause outside the Photographers control.
23. SHOOTING TIME: The Clients and the Photographer agree that cheerful cooperation and punctuality are essential to achieving results that are suitable to both parties. Shooting commences and finishes at the scheduled start and finish time unless agreed otherwise by both parties.
24. HOUSE RULES: The Photographer is limited by the guidelines of the ceremony Official or the Venue Management. The Clients agree to accept the technical results of the imposition of these guidelines on the Photographer. Negotiation with the officials for moderation of guidelines is the Client’s responsibility; The Photographer will offer technical recommendations only, if need be.
25. ARTISTIC STYLE: The Client acknowledges their familiarity with the Photographer’s portfolio and is requesting services with knowledge of their artistic style; that the photographer’s work is constantly evolving; that the photographer’s services are of unique and artistic nature; that the photos may be different from photographs taken by the Photographer in the past; and that in creating the photographs the Photographer will use their personal artistic judgment to create images consistent with their personal vision of the Event, which vision may be different from the Client’s and/or the Subject’s vision of the Event. The Client relinquishes all artistic control to the Photographer and accepts their decisions in regards to depth of field, exposure, colour correction, tilt or any other aspect of the Photographic Works created during the Assignment. Accordingly, the Client acknowledges that the photos will not be subject to rejection on the basis of taste or aesthetic criteria. Client requested edits to images (including colour to grayscale conversion, blemish removal, bodily enhancements, or any other client requests) are subject to the fee of twenty-five dollars ($25) per image.
26. CLIENT COOPERATION: The Photographer cannot perform the Assignment without the cooperation of the Client. In the event that the Photographer is unable to deliver a portion of the Photographic Works, or other goods, required under this Agreement, due to a failure of the Client to cooperate or to provide necessary approvals regarding the Photographic Works, or other goods, to the Photographer, then the Photographer shall not be obligated to deliver that portion of the Photographic Works or other goods to the Client.
27. DELIVERY: The Photographic Works shall be delivered no later than 60 Days from the date of final Client approval.
28. UNEDITED WORK: The Photographer will not deliver any raw photographs or footage to the client. Only the final, edited product will be delivered to the Client at the Photographer’s discretion. Photos will be edited at the Photographer’s discretion and final delivery will not include every photo taken.
29. ADDITIONAL HOURS: Unless otherwise agreed in writing before the wedding day, additional hours of coverage beyond the hours agreed in the Booking Agreement will be charged at $300 per additional hour of coverage provided. The Client must pay for any additional hours of coverage provided before the Photographer will provide the Photographic Works or other products to the Client. The Photographer is not obligated to photograph additional hours but will make all reasonable attempts to do so.
30. RETENTION OF FILES: The Photographer shall take all reasonable steps to protect the images that are recorded at the Event until such time as the Order is delivered to Client. Once the Order has been delivered, the Photographer shall have no further obligation to preserve the images of the Event, regardless of the form of media in which they are stored.
31. PROVIDING PHOTOGRAPHIC WORKS TO VENDORS: The Photographer alone retains the right to provide Photographic Works to Vendors associated with the Booking. The Client shall direct Vendors to the Photographer if they are asked for copies of the Photographic Works. At no time can the Client provide high resolution Photographic Works to Vendors.
32. SOLICITOR'S FEES: The prevailing party in any litigation or dispute involving this Agreement, or the Services performed there under, shall be entitled to recover reasonable solicitor’s fees, costs, and expenses arising from such litigation or dispute from non-prevailing party.
Entire Agreement
The information contained herein constitutes the entire agreement between our clients and our company.
Law and Jurisdiction
These Terms, Conditions and Privacy Policy are governed by and construed in accordance with New Zealand law. Any dispute arising out of or related to the information contained herein is subject to adjudication in Wellington, New Zealand.
Contact Information
Email: info@benjaminandelise.com
Phone: +64274261790
Address: 35 Rata Street, Naenae, Lower Hutt, New Zealand 5011