THE ART OF PORTRAITS
1. Definition of Client/s
The person/s who made a booking for portrait shoot shall be the client/s (“client”) and shall be the one/s to whom TDG Photo and Video (The Studio/Photographer/Videographer) delivers its products, and shall be financially responsible for all the payments to be made under this contract. This contract incorporates the entire understanding of the parties, and any modifications to it must be in writing and signed both by TDG Photo and Video and the client/s.
2. COPYRIGHT and REPRODUCTIONS
It is agreed that the Studio/Photographer shall own the copyright to all film and images created through this contract, thou all the photos taken in the event will be given to the client by the studio. The studio has the exclusive right to make reproductions for the client/s or for the Studios portfolios, samples, self promotions, entry in the contests or exhibitions, editorial use, for display within or on the outside of the Studio, including the internet. Client can use the photo/video clips for personal use but not in commercial purposes. Client should ask permission in writing to use of the photos/video if client will decide to use it in commercial or print ad.
The copyright in all Photographic Works resulting from the Booking or Order remains the property of the Studio. The Studio does not accept commissions to create Photographic Works. The Studio/photographer and the Client have agreed by these standard terms to override section21(3) of the Copyright Act 1994. The Studio grants the Client a non – exclusive Licence to use those parts of the Photographic Works selected by the Studio and presented to the Client. The Client acknowledges that the purpose of the creation of the Photographic Works includes the right of the Studio 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 Studio/Photographer’s obligations under this contract shall arise not by commission but shall be the creation of the Studio/Photographer. The Studio/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. Licensing to the Client is for non-exclusive advertising or non-advertising use, worldwide, in perpetuity with unlimited reproductions. On selling of any of the photographic works is prohibited without a further Licence being obtained. License Use: Any Licensed Territory: Worldwide, Licensed Period: Unlimited, Reproduction rights: Unlimited.
5. MORAL RIGHTS
The Studio/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.
6. PRIVACY and PERSONAL INFORMATION
The Photographer shall abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection.
The Client shall pay the Photographer the various amounts payable in accordance with the Booking and/or Order agreement(s).
8. INTEREST Any monies not paid in full in accordance with clause 7 may be charged with interest at a rate of 2% per month or part month overdue.
The Client undertakes to indemnify the Studio/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
When a Booking/Order is confirmed by the Client, the Client becomes liable for payment to the Studio/Photographer and the Photographer becomes liable to complete the shoot.
10a. Cancellation of the Booking/Order by the Client must be in writing and must give reasonable notice to the Studio/Photographer. Subject to any specific terms in the Agreement, if the Client cancels the Booking/Order:
10.1.a. Within 1 working day of the booked shoot day, the Client must pay a fee of 100% of the Photographer’s fees
10.1.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.
10.1.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.
10.1.d. The Client must pay the Photographer for all Job-Related Costs incurred.
10b. 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.
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 50% 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 25% 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.
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. The Booking appointment and any fees paid prior to cancellation or postponement of the appointment are transferable to another person, as if it were the original person,as long as the Booking is similar and the date and time of the appointment are not changed.
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. WEATHER CONDITIONS
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 Studio/Photographer all Job-Related Costs incurred up until the time that the shoot was postponed and 50% of the Studio/Photographer’s fee which was to be charged for the shoot. The Client is responsible for taking out weather insurance.
12. WORK SUSPENDED ON CLIENT’S INSTRUCTIONS
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 Studio/Photographer for all work in progress and any Job-Related Costs incurred at that time.
13. RESPONSIBILITY FOR CONTRACTORS (if applicable)
13.1 The Client is responsible for making all payments (including rollover fees) and fulfilling all other obligations to contractors.
13.2 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.
13.3 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.
14. CLIENT PROPERTY AND MATERIALS
14.1 Client property and all property and material supplied to the Studio/Photographer by or on behalf of the Client is held at the Client’s risk and the Studio/Photographer accepts no responsibility for the maintenance or insurance of that property or material.
14.2 The Client must pay any sum charged or incurred by the Studio/Photographer for handling or storing property or material supplied by or on behalf of the Client.
14.3 Where property and materials are left with the Studio/Photographer without specific instructions, the Studio/Photographer may dispose of them at the end of six months from the date of receiving them and retain the proceeds.
15. CLIENT CONFIDENTIALITY
The Client must advise the Studio/Photographer as to whether any material or information supplied is of a confidential nature. The Studio/Photographer will keep that material or information confidential, except where disclosure is reasonably necessary to enable the Studio/Photographer to perform the Agreement.
16.1 The Client undertakes to indemnify the Studio/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.
16.2 Such loss, claim, damage or expense shall be moneys due for the purposes of these terms and conditions.
16.3 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.
17. COLOUR VARIATION
For albums and prints, the Client acknowledges that Photographic Works may fade or discolour over time due to the inherent qualities of materials used and that Photographic works are produced on colour corrected monitors and unfortunately will look different on uncalibrated monitors. The Client releases the Studio/Photographer from any liability for any claim based upon fading or discolouration.
18. QUALITY OF PHOTOGRAPHIC WORKS
18.1 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 Studio/Photographer. The Studio/Photographer has the right to rectify the defect within a reasonable time, having regard to the urgency of the work. If rectified, the Studio/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.
18.2 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.
18.3 If the Studio/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.
19. IMPORTANT NOTICE – CONSUMER GUARANTEES ACT 1993
The Consumer Guarantees Act 1993 may apply to the licensed Photographic Works provided by the Studio/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.
20. STUDIO/PHOTOGRAPHER NOT LIABLE FOR LOSSES
Except as provided for by the Consumer Guarantees Act 1993 the Studio/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 Studio/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 Studio/Photographer.
21. LIABILITY OF STUDIO/PHOTOGRAPHER LIMITED
The Studio's/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 Studio/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.
TDG Photo and Video takes great care with respect to the exposure, processing, and delivery of photographs and video clips. In the event the studio can not comply with the terms of this contract due to negligence, oversight, accident, error, omission, any other avoidable or unavoidable circumstance, whether caused by the Studio or otherwise, the Studio’s and/or photographer liability for this or any other circumstance shall be limited to the amount paid up to that time by the client/s. Reservation fee or down payment is non-refundable. This limitation of liability will also apply in the event that negatives or digital images are lost through camera malfunction, damaged in processing, lost in the mail, or otherwise damaged or lost without fault of the photographer studio. In addition, failure by the client/s to make any payment as and when agreed shall release the studio from any further responsibility under this contract, without the responsibility to return any monies previously paid to it under this contract. To the extent provided by law Client/s hold harmless the studio, photographers, videographers (if there's any), second shooters and staff from all liability, damage, cost or expense arising from claims for injury to persons, damage to property occasioned by reason of any conduct undertaken by reason of this contract (hold harmless will not apply to the extent an injury is caused by the gross negligence of or the willful misconduct of the Studio, its officer, agents or employees). Photographer/Videographer/Staff of the Studio made to feel unsafe or harassed / equipment damage / working conditions unpleasant / schedule changes / the photographer/videographer/staff can leave the site without reimbursement of the fee.
22. 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.
23. FORCE MAJEURE
Neither the Client nor the Studio/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.
Client/s and the studio agree that signatures by facsimile transmission or electronic scan (may include emails) are acceptable and shall have the same force and effect as if an original signature. We may use text messages for proof as well.
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.