TERMS AND CONDITIONS OF ENGAGEMENT

1. LICENCE GRANTED TO CLIENT

“Licence” includes the “Standard Photographic Licence & Order Confirmation Form” or estimate
upon which verbal confirmation is given or any order confirmation is given by the photographer
or any work accompanied by an invoice for service.
Except as provided in clause 3, the copyright in all Photographic Works (“Photographic Works”
includes transparencies, negatives, prints, digitised images or images in electronic or any
other form or medium furnished by the Photographer) resulting from the Invoice or Licence,
remains the property of the Photographer.
The Photographer does not accept commissions to create copyright works other than to agree
to licence such parts of the works so created as selected by the Photographer for presentation
to the Client. This overrides section 21(3) of the Copyright Act 1994 in accordance with section
21(4) of the Copyright Act 1994.
The Photographer grants the Client a Licence to reproduce and publish the Photographic Works
for the purposes, territories and time period specified, and on the terms and conditions set
out in the Licence and these Terms and Conditions of Engagement. The Photographic Works
produced for an Advertiser named in the Licence, may only be used for the creative works
of that Advertiser. 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 Photographic Works; and (c) Submitting the Photographic
Works for display at art galleries or other premises.
1.1. CONDITIONS OF LICENCE

1.1.1. The Licence to use the Photographic Works begins from the date of full payment of the Invoice.
No use may be made of any Photographic Works before full payment of the Invoice without
the Photographer’s express permission.
1.1.2. The Licence is granted to the Client and must not be assigned to any third party without the
Photographer’s prior written permission, (which shall not be unreasonably refused), but may
be sublicenced by the Client on the same terms and conditions to the Advertiser named in
the Licence.
1.1.3. The Client is further licensed to do the following:
(a) use only a portion of the Photographic Works, (b) manipulate, distort or make other
alterations (including overprinting by text or other Photographic Works) of the Photographic
Works, unless that right under the Licence is removed by marking the checkbox “No right to
alter image” on the Licence.
1.1.4. 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 in this agreement. Any
breach of these conditions knowingly permitted 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.
1.1.5. The Client shall not, without the prior written permission of the Photographer, digitally capture
or store the Photographic Works in any form of electronic medium, except for the purpose of
the Licence, and provided that the file or other medium in which the Photographic Works are
captured or stored must be destroyed immediately after its use for that purpose.
1.1.6. Where so indicated on the Licence, each use of any Photographic Works by the Client must
be accompanied by an adjacent credit line acknowledging the Photographer’s name and
copyright in the Photographic Works.

2. COPYRIGHT OF THE WORKS

All copyrights that arise out of performance of the Photographer’s obligations under this
contract shall arise not by commission but shall be the creation of the Photographer and the
Photographer shall remain the first owner of the Photographic Works and the Client shall be
supplied with the Photographic Works for copying on the basis of the Licence, marked by
ticking the checkbox as either Exclusive or Non-exclusive. Where any material includes any
trade mark or “get up” of the Client the Licence shall be only for use of the copyrights for the
purpose the copyrights were originally created for. The Client shall have the right to seek
further licences for reuse of any copyright on agreement of a reasonable fee for that use.

3. COPYRIGHT ASSIGNED

Where the Licence specifies that copyright in the Photographic Works supplied pursuant to
the Licence is to be assigned to the Client in consideration of the Client’s payment for those
Photographic Works, the Photographer assigns to the Client copyright in all Photographic Works
supplied pursuant to the Licence. It is the responsibility of the Client to obtain all model
releases and moral rights and privacy waivers necessary for the use of assigned copyright
in the Photographic Works by that Client. As a condition of this assignment the Client agrees
to indemnify the Photographer in respect of any liability to the Photographer arising from any
use of the assigned copyright material.

4. MORAL RIGHTS

Unless indicated on the Licence, the Photographer’s moral rights remain. Any waiver of such
moral rights are waived only to the extent possible by the Photographer, and no waiver is
implied with respect to any other persons interest in works included or which are a component
of the Photographic Works.

5. PAYMENT

Fees are payable as outlined on the Licence or Invoice of the Photographer. Interest at the
rate of 2.5% per month, calculated daily, may be charged on the amounts unpaid from the
due date for payment until payment is made.

5.1. JOB-RELATED COSTS

The Client shall reimburse the Photographer for all Job-related Costs (“Job-related Costs”
means the costs and expenses incurred by the Photographer on the Client’s behalf in providing
Photographic Services to the Client and as detailed on any Invoice).Where the Photographer
makes payment to others on behalf of the Client, the Photographer may add a service charge,
determined at the Photographer’s absolute discretion, to its invoiced costs. Unless otherwise
arranged, the Client must pay all Job-related Costs and any service charges to the Photographer
within 7 days of receipt of the Invoice. The Client is not entitled to any property in: (a) any
authored or artistic works created by the Photographer to support the Photographic Works,
or (b) any materials used for the creation of an authored or artistic work, as a result of plans
or drawings, which are commissioned by the Photographer, or (c) any acquisition of goods for
use in supporting the Photographic Works.
Such goods, materials, authored or artistic works shall remain the property of the Photographer,
unless otherwise agreed between the Photographer and the Client.

5.2. URGENT WORK

Where the Client wants 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.

6. CHANGES TO THE ESTIMATE

Statements of fees and Job related Costs are estimates and not firm quotations and are liable
to alteration. The Photographer must bring any change to the estimate to the attention of the
Client. Any change to the job specifications made by the Client may change the estimate of
the fees and job related costs.

7. CANCELLATION FEES

7.1. When a booking is confirmed as definite, the Client becomes liable for payment to the
Photographer and the Photographer becomes liable to complete the job.
7.2. Where the Client cancels the booking:
(a) Within 1 working day of the booked shoot day, the Client must pay all expenses incurred
for the shoot and a fee of 100% of the Photographer’s standard fee.
(b) And gives notice of cancellation of greater than 1 day and within 3 days of the booked
shoot day, the Client must pay all expenses incurred for the shoot and a fee of 50% of the
Photographer’s standard fee.
(c) Gives notice of cancellation of greater than 3 days and within 1 week of the booked shoot
day, the Client must pay all expenses incurred for the shoot and a fee of 25% of the
Photographer’s standard fee.

8. POSTPONEMENT FEES

Where the Client postpones or changes the date of the shoot:
(a) Within 1 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 days notice, the Client must pay a fee of 25% of the Photographer’s
daily fee for each day which is postponed

9. 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 Photographer for all work in progress
at that time.

10. RETURN OF PHOTOGRAPHIC WORKS

10.1 The Client must return all Photographic Works undamaged to the Photographer within
15 working days from the date of expiry of the Licence.
10.2. Where any Photographic Works have not been returned as required, the Client must pay a fee
of $50 per day for each of the Photographic Works for every day or part day after the due
return date and upon written notification by the Photographer that the Photographic Works
have not been returned.
10.3. For each of the Photographic Works that is lost or damaged, the Client must pay the Photographer
$1,500.00 within 7 days from the date of the expiry of the Licence.

11. CLIENT CONFIDENTIALITY

The Client must advise the Photographer whether any material or information communicated
to the Photographer for the purpose of the photography is confidential. The Photographer must
keep any such confidential material or information confidential, except where it is reasonably
necessary to do otherwise to enable the Photographer to carry out the Photographer’s
obligations, or exercise any of the Photographer’s rights in relation to the Invoice.

12. RESPONSIBILITY FOR CONTRACTORS

12.1 The Client is responsible for making all payments (including rollover fees) and fulfilling all
other obligations to person(s) (“Contractors”) who supply any product or perform any service
in respect of the shoot. 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 within 7 days, on a request by the
Photographer, shall copy evidence of these model releases to the Photographer.
12.2 Where the Client requests the Photographer to contract Contractors on behalf of the Client,
the Photographer acts as agent for the Client and the Client indemnifies the Photographer
against all costs, disbursements and other obligations arising from the Photographer acting
as agent for the Client.

13. INDEMNITY FOR BREACHES OF INTELLECTUAL PROPERTY

The Client fully indemnifies the Photographer against any claims, costs, or expenses arising
out of any illegal or defamatory Photographic Works produced for the Client and any infringement
of any intellectual property right of any person. 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.

14. CLIENT PROPERTY AND MATERIALS SUPPLIED

14.1. 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 insurance of such property or material.
14.2 The Client must pay any sum charged by the Photographer for handling or storing property
or material supplied by or on behalf of the Client. 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.

15. PHOTOGRAPHIC WORK OF UNACCEPTABLE QUALITY

15.1. 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 causing the rejection within a reasonable
time, having regard to the urgency of the work, but may not charge the Client any extra fee
or cost for rectifying the defect.
15.2. 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 imposed by any documented agreements on the nature of the intended work.
15.3. 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.
15.4. If there is a dispute as to artistic interpretation or technical quality which is unresolved after
negotiations between the Photographer and the Client, then the dispute shall be referred
either to the President of the Advertising and Illustrative Photographers Association or the
President New Zealand Institute of Professional Photography who shall appoint a suitably
qualified person/s to determine the matter.

16. 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 Photographer all expenses incurred up until the time that the shoot was postponed
and 50% of the Photographer’s fee which was to be charged for the shoot. The Client is
responsible for taking out weather insurance.

17. WHERE SUPPLY FOR BUSINESS PURPOSES, CONSUMER GUARANTEES
ACT 1993 NOT TO APPLY

The Client acknowledges that where the Photographic Works or Photographic Services
(“Photographic Services” means the provision by the Photographer of Services related to the
producing of Photographic Works and includes the supply of any other goods or services by
the Photographer) supplied under the Invoice and Licence are purchased for business purposes,
the Consumer Guarantees Act 1993 shall not apply
.
18. PHOTOGRAPHER NOT LIABLE FOR LOSSES

Except as provided for by the Consumer Guarantees Act 1993, 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
(b) Any loss of profits
(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
(e) Any loss arising directly or indirectly from any breach by the Photographer of any of its
obligations under these Terms and Conditions of Engagement or from any negligence on the
part of Photographer or its employees.

19. LIABILITY OF PHOTOGRAPHER LIMITED

Except where provided to the contrary by the Consumer Guarantees Act 1993, 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 any
Photographic Services by the Photographer, shall not exceed the full value of the payments
made by the Client under the Invoice.

20. CONTRACT MAY BE TERMINATED ON NOTICE

Effective termination of this Agreement by the Client must be in writing and give reasonable
notice to the Photographer. The Client must compensate the Photographer for all fees and
expenses incurred by the Photographer until 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 and to reduce expenditure to a minimum.
© A.I.P.A/Clendon Feeney, Solicitors, Auckland, 1994-1995 4211:1-f2v13
The Advertising & Illustrative Photographers Association Incorporated | www.aipa.org.nz
The New Zealand Institute of Professional Photography Incorporated | www.nz.ipp.org.nz