Return to information page
EARP-JONES ORIGINALS LTD PHOTOGRAPHIC TERMS AND CONDITIONS OF ENGAGEMENT
LICENCE GRANTED TO CLIENT
"Licence" includes the EJO Photographic Licence & Order Confirmation Form or estimate uponwhich 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 by clause 3, the copyright in all photographic works ("Photographic Works" includes transparencies, negative, prints digitised images in electronic, or any other form, medium, film or media, furnished by the photographer) resulting from the invoice or Licence, shall be owned by 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 the 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 specified, and on the terms and conditions set out in the Licence and these Terms and Conditions of Engagement. The Photographic works produced for and Advertiser named in the Licence, may only be used for the creative works of that Advertiser.
CONDITIONS OF LICENCE
The Licence to use the Photographic Works begins from the full payment of the invoice.
The Licence is granted to the client and must not be assigned to any third party without the photographers 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.
The client is further Licenced to do the following: (a) Use only a portion of the Photographic Works, (b) manipulate or distort or make other alterations including overprinting by text or other (Photographic Works) of the Photographic Works, unless that right is removed by marking the checkbox "No right to alter image" on the Licence.
COPYRIGHT IN THE WORKS
All copyrights created in the performance of the photographers 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 copyright in 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 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 Clients payment for those Photographic Works, the Photographer assigns the Client copyright in all Photographic Works supplied pursuant in 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 the 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.
JOB RELATED COSTS
The client shall remburse the Photographer for all job-related costs. ("Job-related costs" means the costs and expenses incurred by the Photographer on the Clients behalf in providing the Photographic Services to the Client and as detailedin the invoice). The Photographer may add a service charge, determined at the Photographers absolute discretion, to its invoiced costs.
CHANGES TO ESTIMATE
The Photographer must bring any changes in the estimate to the attention of the Client. Any change in the job specifications made by the Client may change the estimate of the fees and job-related costs.
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, clearence, licence or other form of approval necessary for the lawful use of third party intellectual property works.
7. CLIENT PROPERTY AND MATERIALS SUPPLIED
Client property and all property and materials supplied to the Photographer by or on behalf of the Client is held at the Clients risk and the Photographer accepts no responsibility for the insurance of such property or material.
PHOTOGRAPHIC WORK OF UNACCEPTABLE QUALITY
Where the Photographic Works are not of an acceptable technical quality, making it unfit for the purpose of its specified use, the 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.
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 Photographers judgement is absolute within the limits imposed by any documented agreements on the nature of the intended work.
If the Photographer produces Photographic Works that are in the same style and structure as the Photographers past work (by reference to the Photographers portfolio), the Client is deemed to have accepted the Photograhers interpretation.
If there is a dispute as to the 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 apppoint a suitable qualified person/s to determine the matter.
WHERE SUPPLY FOR BUSINESS PURPOSES, CONSUMER GUARANTEES ACT 1993 NOT TO APPLY.
The client acknowledges that where the Photographic Works or Photographic Services supplied under the Invoice and Licence are purchased for business purposes, the Consumer Guarantees Act 1993 shall not apply.
PHOTOGRAPHER NOT LIABLE FOR LOSSES
Except as provided for in the Consumer Guarantees Act 1993, The Photographer shall not be liable for:
(a) Any loss or damage arising by reason of 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 Clients verbal instructions.
LIABILITY OF THE PHOTOGRAPHER LIMITED
Except where provided to the contrary by the Consumer Guarantees Act 1993, the Photographers 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 perfermance 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.
Return to information page