NOVELLA STANDARD TERMS AND CONDITIONS V15.0
Based on NZIPP Standard Terms and Conditions.
All capitalised words are defined in the definitions section.
- Photographic Works: includes photographic prints, transparencies, negatives and digital images created by the Photographer.
- Photographer: means the photographer and where the context requires may include, the studio, photographic company, employees or sub-contractors.
- Order: includes an order placed by the Client for the production of Photographic Works, an invoice or statement.
- Client: means the Client listed on the Booking or Order agreement.
- Subject: the person or property being photographed on behalf of the Client
- Licence: is a right granted by the Photographer to the Client to use the copyright works of the Photographer according to the terms set out above.
- Booking: includes appointments made for a sitting, viewing and any other meeting where the Photographer has set aside specific time to meet with or do work for the Client.
1. AGREEMENT OVERVIEW
This agreement contains the entire understanding between the Photographer and the Client. It supersedes all prior agreements between the parties. The only way to add or change this agreement is to do so in writing, signed by all the parties. On signing this document the Client understands that the Photographer will act as sole and exclusive photographer for the agreed date and time. The Photographer also agrees not to make any other reservations for the agreed date and time.
The Photographer and the Client agree to cheerful cooperation and communication for the best possible result within the definition of this assignment. The Client is responsible to ensure other services and guests will not interfere with the Photographer's ability to fulfill its contractual obligations. Any defect in the Photographic Works due to any breach of this clause is entirely the Clients responsibility and cost, and shall permit the Photographer to add restrictions to the use and publication of the Photographic Works. The Client also agrees that the Photographer is the sole photographer contracted by the Client, paid or unpaid, for this assignment
The copyright in all Photographic Works resulting from the Booking or Order remains the property of the Photographer. The Photographer grants the Client a License to use these Photographic works.
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.
Photographic works are Licensed to the Client under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 New Zealand License and may be reproduced and shared for personal use only. Under the terms of this License the work cannot be altered in any way without the express permission of the Photographer. The Client agrees to credit the Photographer in an appropriate way when copying or sharing the work. e.g. a link to the Photographer's website if shared on the internet.
4. MODEL RELEASE
The Client grants to the Photographer the irrevocable and unrestricted right to use and publish photographs 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 photographs.
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 photographic competitions or awards and for their use in any material published in connection with promoting those competitions or awards; and
advertise or otherwise promote the Photographer’s Work; 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.
5. PRIVACY AND PERSONAL INFORMATION
The Photographer shall abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection.
6. 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.
The Client shall pay the Photographer the various amounts payable in accordance with the Booking and/or Order agreement(s).
8. PAYMENT DEFAULT AND CONSEQUENCE
Any monies not paid in full in accordance with clause 7 may be charged with interest at a rate of 2.5% per month or part month overdue. Any and all contact regarding overdue amounts is chargeable in addition to invoiced values.
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.
10. CANCELLATION OR POSTPONEMENT OF BOOKING
Where the Client cancels or postpones 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.
Unless otherwise stated in the Booking agreement the cancellation fee shall be 100% of the full fee if cancelled within 48 hours of the booked appointment for portraits or 4 weeks for weddings with earlier notice having no fee beyond forfeit of the deposit,
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.
11. 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.
12. COLOUR VARIATION AND QUALITY
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.
"High Resolution," "Hi-Res" or similar variations, describes images able to be printed at up to 6x8" without obvious quality degradation. "Screen Resolution," "Low-Res" or similar variations, describes images that shall be of suitable quality to share digitally i.e. a 6x8" image at 72dpi.
13. 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.
14. PHOTOGRAPHER NOT LIABLE FOR LOSSES
Except as provided for by the Consumer Guarantees Act 1993 the Photographer shall not be liable for:
any loss or damage arising by reason of any delay in the completion of the Photographic Works; or
any loss of profits; or
any indirect or consequential loss of whatever nature; or
any loss resulting from any interference from the Client, other services or guests.
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.
15. 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.
16. 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.
17. 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.
18. CHANGE OF DETAILS
The Client shall give the Agent not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s physical address, address for notices, email address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Agent as a result of the Client’s failure to comply with this clause.
All invoices and other communications (whether physical or electronic) sent by the Agent to the Client will be deemed to have been delivered if they have been sent to the Client’s current address for notices (whether physical, postal, or electronic) as per clause 18.
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
The Agent reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Agent notifies the Client of such change.
20. IN CASE OF COMPLAINT
The Photographer will endeavour to provide The Client with a competent, timely service. If The Client is not satisfied, they may discuss the matter with The Photographer. If The Client is still not satisfied, The Client may contact the NZIPP or another professional to provide 3rd party facilitation to assist in restoration of the differences.