Standard Digital Media Creation Terms And Conditions Of Engagement (sign at bottom of page):
1. INSTRUCTIONS MUST BE IN WRITING – The Client must ensure that all their instructions and expectations (or variations of such) regarding the Booking or Order are agreed in writing.
2. PAYMENT/ INVOICING – Payment is to be made in full, 48 hours before production commences. This is to keep accounting overheads low, and allows the Photographer/ Videographer to offer more competitive pricing. This payment is non-refundable unless circumstances on the Photographer/ Videographer’s side prevent project completion (see term 18).
Prices will be in New Zealand Dollars, plus GST (International orders are exempt from GST).
3. LICENCE GRANTED TO CLIENT – The copyright in all Digital Media Works resulting from the Booking or Order remains the property of the Photographer/ Videographer. The Photographer/ Videographer does not accept commissions to create Photographic/ Videographic Works. The Photographer/ Videographer and the Client have agreed by these standard terms to override section 21(3) of the Copyright Act 1994. The Photographer/ Videographer grants the Client a non-exclusive Licence to use those parts of the Photographic/ Videographic Works selected by the Photographer/ Videographer and presented to the Client , however this Licence does not include the right to copy, reproduce or publish the Photographic/ Videographic Works or any part of the Photographic/ Videographic Works. The Client may license any or all of the Photographic/ Videographic Works from the Photographer’s/ Videographer’s selection. The Client acknowledges that the purpose of the creation of the Photographic/ Videographic Works includes the right of the Photographer/ Videographer to: (a) Enter the Photographic/ Videographic Works into photography/ videography 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/ Videographer’s Work; and (c) Submit the Photographic/ Videographic Works for display at art galleries or other premises; and (d) Use the Photographic/ Videographic Works for any other purpose within the Photographer’s/ Videographer’s business activities.
4. CONDITIONS OF LICENCE – This Licence to use, and the right to use, the Photographic/Videographic Works comes into effect from the date of full payment of the Order, except where the Photographer/ Videographer gives express written permission.
5. COPYRIGHT IN THE WORKS – All copyright that arises out of the performance of the Photographer’s/ Videographer’s obligations under this contract shall arise not by commission but shall be the creation of the Photographer/ Videographer. The Photographer/ Videographer shall remain the first owner of the Photographic/ Videographic Works and the Client shall be supplied with the Photographic/ Videographic Works for use on the basis of the terms of this Licence. The Client shall have the right to seek further licences for reuse of any copyright at the Photographer’s/ Videographer’s normal prices at the time of the request.
6. CREDIT – Any video may have a small credit embedded, at the Photographer’s/ Videographer’s discretion. It will be unobtrusive and not exceed 5 seconds. For example: “video by HENDRIKUS DE VAAN”. Music Videos will have an opening credit (unobtrusive and overlaid) stating “Video by Hendrikus De Vaan”. The artist has the option to have the title of their song overlaid, as well as the artist name in the same section, to be requested PRIOR to final delivery, which would look like:
“THIS IS A SONG”
artist: THE CLIENT’S BAND
video: HENDRIKUS DE VAAN
7. PRIVACY AND PERSONAL INFORMATION – The Photographer/ Videographer shall abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection.
8. PAYMENT – The Client shall pay the Photographer/ Videographer the various amounts payable in accordance with the Booking and/or Order agreement(s).
9. INTEREST – Any monies not paid in full in accordance with clause 7 may be charged with interest at a rate of 5% per month or part month overdue.
10. INDEMNITY – The Client undertakes to indemnify the Photographer/ Videographer 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.
11. CANCELLATION OR POSTPONEMENT OF BOOKING – Where the Client cancels or postpones a Booking appointment , the Client must pay, at the Photographer’s/ Videographer’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. 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 .
12. CLIENT CONFIDENTIALITY – The Client must advise the Photographer/Videographer as to whether any material or information communicated to him/her is of a confidential nature. The Photographer/Videographer 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/ Videographer to carry out his/ her obligations in relation to the Booking or Order.
13. INDEMNITY FOR BREACHES OF INTELLECTUAL PROPERTY – The Client shall fully indemnify the Photographer/ Videographer in respect of any claims, costs, or expenses arising out of any illegal or defamatory Photographic/ Videographic Works produced for the Client or any infringement of an intellectual property right of any person.
14. IMPORTANT NOTICE: CONSUMER GUARANTEES ACT 1993 – The Consumer Guarantees Act 1993 may apply to the licensed Photographic/ Videographic Works provided by the Photographer/ Videographer if the Client acquires those licensed Photographic/ Videographic 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/ Videographic 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.
15. PHOTOGRAPHER/ VIDEOGRAPHER NOT LIABLE FOR LOSSES – Except as provided for by the Consumer Guarantees Act 1993 the Photographer/ Videographer shall not be liable for: (a) Any loss or damage arising by reason of any delay in the completion of the Photographic/ Videographic 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 Photographer/ Videographer 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/ Videographer.
16. LIABILITY OF PHOTOGRAPHER/ VIDEOGRAPHER LIMITED – The Photographer’s/ Videographer’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/ videographic services by the Photographer/ Videographer, 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.
17. ORDER MAY BE TERMINATED ON NOTICE – Effective termination of the Order by the Client must be in writing and give reasonable notice (typically 48 hours) to the Photographer/ Videographer. The Client must compensate the Photographer/ Videographer 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), as well as any negative cost the Photographer/ Videographer has incurred during preparation – including hours spent in pre-production and deposits paid for additional talent or equipment hire. Upon receipt of such notice from the Client, the Photographer/ Videographer must take immediate steps to bring the photographic/ videographic services to a close.
18. FORCE MAJEURE – Neither the Client nor the Photographer/ Videographer shall be liable for any loss or damage arising directly or indirectly due to an act of natural disaster, fire, armed conflict, labour disputes, civil commotion, intervention of a government, or any other cause outside the Photographers/ Videographers control. In this event, production will be rescheduled in good faith.
19. ARTISTIC STYLE – The Client acknowledges their familiarity with the Photographer’s/ Videographer’s portfolio and is requesting services with knowledge of their artistic style; that the photographer’s/ videographer’s work is constantly evolving; that the photographer’s/ videographer’s services are of unique and artistic nature; that the photos/ moving images may be different from photographs/ moving images taken by the Photographer/ Videographer in the past; and that in creating the photos/ moving images the Photographer/Videographer will use their personal artistic judgment to create images consistent with their personal vision of the Event, which vision may be different from the Client’s and/ or the Subject’s vision of the Event. The Client relinquishes all artistic control to the Photographer/ Videographer and accepts their decisions in regards to depth of field, exposure, colour correction, tilt, editing or any other aspect of the Photographic/ Videographic Works created during the Assignment. Accordingly, the Client acknowledges that the photos/ moving images will not be subject to rejection on the basis of taste or aesthetic criteria. Client requested edits to images/ moving images (including blemish removal, bodily enhancements, editing changes, or any other client requests) are subject to the fee of $200 per hour, in 15 minute blocks or part thereof.
20. CLIENT COOPERATION – The Photographer/ Videographer cannot perform the Assignment without the cooperation of the Client. In the event that the Photographer/ Videographer is unable to deliver a portion of the Photographic/ Videographic Works, or other goods, required under this Agreement , due to a failure of the Client to cooperate or to provide necessary approvals regarding the Photographic/ Videographic Works, or other goods, to the Photographer/ Videographer, then the Photographer/Videographer shall not be obligated to deliver that portion of the Photographic/ Videographic Works or other goods to the Client.
21. UNEDITED WORK – The Photographer/ Videographer will not deliver any raw photographs or footage to the client . Only the final, edited product will be delivered to the Client at the Photographer’s/ Videographer’s discretion. Photos will be edited at the Photographer’s/ Videographer’s discretion and final delivery will not include every photo/ moving image frame taken.
22. ADDITIONAL HOURS – Unless otherwise agreed in writing before the day agreed, additional hours of coverage beyond the hours agreed in the Booking Agreement will be charged at $200 per additional hour of coverage provided. The Client must pay for any additional hours of coverage provided before the Photographer/ Videographer will provide the Photographic/ Videographic Works or other products to the Client.
23. MUSIC LICENCE – For music videos, the client agrees to give the Photographer/ Videographer a perpetual licence to use the music track the video was made for, only in context of the media product produced, on their portfolio, website, and social media platforms for the purpose of marketing and portfolio use. This is so that the Photographer/ Videographer can use the finished music video as a sample of their services without breaching copyright. The client agrees that they have exclusive authority to give this permission, or alternatively will provide written permission for this from their agent/ producer/ publisher, or other relevant copyright holder prior to commencement of the project.
24. MEDIA BUYOUT – If the client wishes to do a full buyout of the copyright, regarding clause 3, 4, & 5, this can be negotiated in good faith. However, this is usually something that should be agreed upon before a project commences.
25. PROJECT STORAGE – Deliverables will be stored for one week. It is the clients responsibility to download the files within that time frame. File reuploads due to failure to do this may be charged for. Unless otherwise agreed, in writing, the raw files and footage, as well as any working files for a project will be stored for one week from delivery. This is to accommodate changes or revisions. If the client wishes for longer term storage of a project, this service is available at a fee (hard drive costs, and archiving costs). The Photographer/ Videographer agrees to use best practices for backups, but can not be held responsible for any loss of files being archived.
Definition of terms used in this document:
Digital Media Works/ Photography/ videography: Includes photographic/videographic digital files, still and moving images created by the Photographer/ Videographer, written content, digital artwork, and distribution strategy outlines.
Photographer/ Videographer: Means the Photographer/ Videographer/ writer/ consultant/ specialist providing the services under this Booking or Order agreement and where the context requires may include, the studio, photographic/ videographic company, employees or subcontractors.
Client: Means the client listed on the Booking or Order agreement .
Order: Includes an order placed by the Client for the production of Photographic/ Videographic Works, an invoice or statement.
Booking: Includes appointments made for a sitting, viewing and any other meeting where the Photographer/ Videographer has set aside specific time to meet with or do work for the Client.
Licence: Is a right granted by the Photographer/ Videographer to the Client to use the copyright works of the Photographer/ Videographer on the terms set out above.