Standard Photographic Terms and Conditions of Engagement

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 to reproduce and publish the Photographic Works for Personal Use only. 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 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).

3.3 The Client may not manipulate, distort or make other alterations to the Photographic Works unless expressly agreed upon by the Photographer 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 an 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. VIDEO RECORDING

4.1 The Photographer retains the right to capture video recordings of the Client and their pets. Video recordings is included in the definition 'Photographic Works' within this contract. The Client acknowledges that the Photographer always retains the right to use the Photographic Works, including video recordings, in any manner at any time and in any part of the world for the purposes outlined in section 2.3 of this contract.

5. DATA PRESERVATION

5.1 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.

6. STORAGE AND BACKUPS

6.1 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.

7. PRIVACY AND PERSONAL INFORMATION

7.1 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.

7.2 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.

7.3 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.

7.4 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.

8. PAYMENT

8.1 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. OVERDUE PAYMENTS

9.1 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.

10. CANCELLATION

10.1 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.

10.2 Cancellation of the Booking/Order by the Client must be in writing and must give reasonable notice to the Photographer. Subject to any specific terms in the Agreement, if the Client cancels the Booking/Order:

(a) Within 1 working day of the booked shoot day, the Client must pay a fee of 100% of the Photographer’s fees

(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 Photographer’s fees.

(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 Photographer’s fees.

(d) The Client must pay the Photographer for all Job-Related Costs incurred.

10.3 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.

11. CLIENT CONFIDENTIALITY

11.1 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.

12. INDEMNITY

12.1 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.

12.2 Such loss, claim, damage or expense shall be moneys due for the purposes of these terms and conditions.

12.3 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.

13. COLOUR VARIATION

13.1 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.

14. QUALITY OF PHOTOGRAPHIC WORKS

14.1 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.

14.2 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.

14.3 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.

15. CONSUMER GUARANTEES ACT 1993

15.1 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.

15.2 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.

16. LIABILITY OF PHOTOGRAPHER LIMITED

16.1 Subject to clause 15, 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.

17. HEALTH AND SAFETY

17.1 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.

18. FORCE MAJEURE

18.1 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.

19. DISPUTE RESOLUTION

19.1 The Photographer and the Client agree to use their best efforts to resolve any dispute which arises through good faith negotiations.

19.2 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.

19.3 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.

20. CONFLICTS

20.1 In the event of a conflict or inconsistency between these terms and conditions and the Booking/Order, the Booking/Order shall prevail.

21. GOVERNING LAW

21.1 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.

22. ENTIRE AGREEMENT

22.1 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.

22.2 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.

DEFINITIONS

For the purposes of the Agreement, the following definitions shall apply unless the context requires otherwise:

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, invoices, 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.

Personal Use: means non-commercial use of the Photographic Works for display on personal websites, computers and social media. The Photographic Works may not be used in any way whatsoever by the Client to charge money, collect fees, or receive any form of remuneration.

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. This includes Jonathan King, Pawfessional Photography and Jono King Photography.

Price List: means the Photographer’s list or schedule of prices for goods and services at the date of the Agreement.