JAMIE COBEL PHOTOGRAPHY LIMITED

Terms & Conditions of Engagement

 

1. DEFINITIONS

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

 

Agreement: means the booking or engagement, together with these standard terms and conditions and any other special conditions agreed between the parties and/or recorded in the invoice.

 

Client: means the person or entity listed on the booking or engagement 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 orengagement and created or supplied by the Photographer, including photographs, aerial or drone photographs, photographic prints, moving images(video), reels, transparencies, negatives, digital files, and images in any form or medium.

 

Photographer: means the photographer Jamie Cobel and where the context requires may include, the studio, photographic company, employees or sub-contractors.

 

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 or engagement under this Agreement remains the property of the Photographer. The Photographer does not accept commissions to create Photographic Works. These terms contract out of sec on 21(3) of the Copyright Act 1994 under sec on 21(4) of that Act.The limits of the Client’s licence will usually be recorded in the Photographer’s invoice.

 

2.2 The default agreed position is that 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 or engagement, 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.

 

2.3 (Photographer’s own use always permitted).  The Client acknowledges that the Photographer always retains the right to use the Photographic Works in any manner at any me 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 thePhotographer’s business activities.

 

3. CONDITIONS OF LICENCE

 

3.1 This Licence to use, and the right to use the Photographic Works starts 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 otherwise.

 

3.2 This Licence may not be assigned to any third party without the Photographer’s prior written permission (which shall not be unreasonably refused).

 

3.3 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 and to the extent that this right is expressly excluded in the Agreement; and

 

b Use only a portion of the Photographic Works.3.4 Copyright in any new Photographic Works created from any manipulation, alteration, distortion or overprinting of text of the licensed Photographic Works shall also 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 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. ASSIGNMENT OF COPYRIGHT

 

4.1 Where the Agreement specifies that copyright in the Photographic Works is assigned to the Client in consideration for the Client’s payment for those Works(including by denoting in the Photographer’s invoice that there is “full copyright and/or unlimited licence” then:

 

a The Photographer assigns to the Client copyright in the Photographic Works from the date of full payment of all amounts owed to the Photographer in relation to the Photographic Works and the Agreement;

 

b It is the responsibility of the Client to obtain all model releases, moral right waivers and privacy waivers necessary for the use of the Photographic Works;

 

c The Client agrees to indemnify the Photographer in respect of any loss, claims, damages or expenses (including costs incurred on a solicitor client basis)incurred by the Photographer arising from any use of the Photographic Works; and

 

d The Photographer retains the rights described in the above clause relating to “Photographer’s own use always permitted” and the “Moral Rights” clauses of these terms and conditions.

 

5. MORAL RIGHTS

 

5.1 The Photographer asserts moral rights, including attribution on 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, should be accompanied by a credit acknowledging the Photographer’s name and/or social media handle(s).

 

6. DATA PRESERVATION

 

6.1 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, watermarks 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 such data 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.

 

7. STORAGE AND BACKUPS

 

7.1 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 made available, these may attract a fee to acknowledge the Photographer’s me and expense in retrieval and provision to the Client.

 

8. PRIVACY AND PERSONAL INFORMATION

 

8.1 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 performance or enforcement of the Agreement or the Photographic Works (including arranging third party services), direct marketing and in connection with these terms and conditions.

 

8.2 The Client authorises the Photographer to collect, retain, use personal information for these purposes (including assessing credit worthiness), and to disclose that information to any person or enity for these purposes.

 

8.3 Personal information collected by the Photographer shall be retained by the Photographer. The Client may access and request correction of any of the Client’s personal information by contacting the Photographer.

 

8.4 Where sec on 105 of the Copyright Act 1994 applies (i.e. the Client’s right to privacy of private and domestic photographs and films commissioned), the Photographer shall obtain any necessary consent and waiver in accordance with sec on 107 of that Act, provided however that the Client agrees that the Photographer has the rights described in the clause “Photographer’s own use always permitted” unless those rights are expressly excluded in the booking or engagement.

 

9. PAYMENT

 

9.1 The Client shall pay the Photographer the various amounts payable in accordance with the booking or engagement and the Agreement.

 

9.2 If the Photographer’s fee and expenses are not estimated or quoted in advance, or for any goods or services different or additional to the booking or engagement, then the Client shall pay the amount invoiced by the Photographer in accordance with the Photographer’s usual or past billing structure or in the absence of any, by reference to a chargeable rate of the Photographer at NZD $100 plus GST per hour (noting that photography post production and administration on are usually as, or more, time consumptive than the travel and shoot time).

 

9.3 The Photographer may require a deposit or payment of part or all of the amounts due in advance. Unless otherwise specified in the Agreement or invoice, payment of all other amounts are due within 14 days of invoice.

 

10. JOB-RELATED COSTS

 

10.1 The Client shall also reimburse the Photographer for all external disbursements or Job-Related Costs. Unless otherwise specified in the Agreement, the Client must pay all Job-Related Costs and service charges/commissions to the Photographer within 14 days of invoice. The Client is not entitled to any property in:

 

a Any artistic works or other materials created or supplied by the Photographer to support the Photographic Works; or

 

b Any materials used for the creation of an ar s c work, which are commissioned or arranged by the Photographer; or

 

c Any goods used in supporting the Photographic Works

 

10.2 Such goods, materials, authored or artistic works shall remain the property of the Photographer, unless otherwise specified in the Agreement.

 

11. URGENT WORK

 

11.1 Where the Client requires Photographic Works on an urgent basis (which includes where the Photographer is unable to re-shoot or correct a shot because of an urgent deadline) the Photographer will not be liable for any losses or damages arising out of the inability to carry out a re-shoot or the costs of arranging a re-shoot.

 

12. CHANGES TO THE ESTIMATE

 

12.1 Estimates of fees and Job-Related Costs are estimates only and not firm quotations and so may change. Any change to the job specifications made or agreed by the Client may alter the fees and Job-Related Costs.

 

13. OVERDUE PAYMENTS

 

13.1 In the event that any monies are not paid in full on the due date, the Photographer shall be entltled to do any one or more of the following:

 

a Charge interest at a rate of 2.5% per month or part month overdue on any amounts outstanding; and/or

 

b Recover any debt collection costs and related legal expenses (including on a solicitor-client basis); and/or

 

c Suspend any further work until all amounts owing and any costs incurred are paid in full; and/or

 

d in the alternative, cancel the Agreement without notice, retain any part payments made, and revoke the Client’s licence to use the Photographic Works.

 

14. RESPONSIBILITY FOR CONTRACTORS

 

14.1 The Client is responsible for making all payments and fulfilling all other obligations to contractors.

 

14.2 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.

 

14.3 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.

 

15. CLIENT PROPERTY AND MATERIALS

 

15.1 Client property and all property and material supplied to the Photographer by or on behalf of the Client is held at the Client’s risk and the Photographer accepts no responsibility for the maintenance or insurance of that property or material.

 

15.2 The Client must pay any sum charged or incurred by the Photographer for handling or storing property or material supplied by or on behalf of the Client.

 

15.3 Where property and materials are left with the Photographer without specific instructions, the Photographer may dispose of them at the end of six months from the date of receiving them and retain the proceeds.

 

16. LIMITATION OF LIABILITY FOR PROPERTY DAMAGE AND PROPERTY ACCESS WARRANTY

 

16.1 The Client acknowledges that the photographic session will often take place at a location or venue where the Client is not the owner of the premises (the“Property”). There is often a separate pre existing contractual relationship between the Client and Property owner under which the client is permitted to bring the Photographer onto the Property for the purpose of the shoot and for ancillary purposes. Often the Client engages the Photographer to be present at the Property for the purposes of the shoot (and ancillary purposes) alone.

 

16.2 The Client represents and warrants to the Photographer that thePhotographer, has been granted all necessary permissions, consents, and approvals by the Property owner to enter and conduct the services under the Agreement on the Property. The Client further agrees to indemnify, defend, and hold harmless the Photographer from and against any and all claims, losses, damages, liabilities, or expenses (including reasonable legal fees) arising out of or relating to any breach of this warranty, including for claims (by the Property owner or otherwise) of trespass or any disputes concerning the Photographer’s access to or activities on the Property.

 

16.3 The Photographer shall take reasonable care during the session; however, the Client agrees that the Photographer shall not be held liable for any accidental or incidental damage to the Property, its fixtures, or contents, except in cases of gross negligence or wilful misconduct by the Photographer. The Client further agrees to indemnify and hold the Photographer harmless from any claims, losses, or damages arising from any such damage during the session.This clause applies whether or not the Client or its representatives are present at the shoot.

 

17. CLIENT CONFIDENTIALITY

 

17.1 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 or comply with the law.

 

18. INDEMNITY

 

18.1 In addition to the above 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.

 

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

 

18.3 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.

 

19. COLOUR VARIATION

 

19.1 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 thePhotographer from any and all liability in regard to colour reproduction.

 

20. QUALITY OF PHOTOGRAPHIC WORKS 

 

20.1 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 me, 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.

 

20.2 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.

 

20.3 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.

 

21. PHOTOGRAPHER NOT LIABLE FOR LOSSES

 

21.1 Except as provided by statute, 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 revenues; 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.

 

22. LIABILITY OF PHOTOGRAPHER LIMITED

 

22.1 Subject to statute, 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.

 

23. FORCE MAJEURE

 

23.1 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.

 

24. CONFLICTS

 

24.1 In the event of a conflict or inconsistency between these terms and conditions and the booking or engagement, the booking or engagement shall prevail.

 

25. GOVERNING LAW

 

25.1 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.