Terms of Service

1. LICENCE GRANTED TO CLIENT

1.1 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.

1.2 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 and publish 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.

1.3 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.

1.4 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.

2. CONDITIONS OF LICENCE

2.1 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.

2.2 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).

2.3 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.

2.4 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.

2.5 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.

3. MORAL RIGHTS

3.1 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.

3.2 If the Client fails (for whatever reason) to provide the attribution described in clause 3.1, 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.

4. DATA PRESERVATION

4.1 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. 

5. STORAGE AND BACKUPS

5.1 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.

6. PRIVACY AND PERSONAL INFORMATION

6.1 As part of creating the Photographic Works, the Photographer may collect and retain personal information about the Client. The personal information may beused by the Photographer for communicating with the Client for any purposerelating to the Photographic Works (including arranging third party services),
direct marketing and in connection with these terms and conditions.

6.2 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.

6.3 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.

6.4 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.

7. CLIENT CONFIDENTIALITY

7.1 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.

8. INDEMNITY

8.1 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.

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

8.3 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.

9. COLOUR VARIATION

9.1 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.

10. GOVERNING LAW

10.1 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.

11. ENTIRE AGREEMENT

11.1 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.

11.2 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.