Terms & Conditions
By booking and accepting the photography services, you had agreed to the following terms and conditions:
This Agreement applies to any photograph, graphics, digital assets, or digital images created or taken by Photographer and delivered to the Client (collectively known as “Photos”) for the property. This Agreement governs the relationship between the parties and in no event shall any e-mail communication or other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
1.0 Intellectual Property Rights
All photos and rights relating to them, including copyright and ownership rights in the media in which the Photos are stored, remain the sole and exclusive property of the Photographer. This agreement provides the Client with the limited right to reproduce, publicly display, and distribute the Photos only for promotional or advertising purposes directly related to the sale of the Property. Photos used for any purpose not directly related to the sale of the Property must be with the express permission of Photographer and the payment of additional fees, unless otherwise agreed to in writing.
Photos may be uploaded to any MLS listing service solely for promotion of the Property during the pendency of this Agreement. However, regardless of any terms and conditions of the MLS, at no time does this Agreement provide Client with the right to transfer copyright, or any other exclusive rights as provided by the Copyright Act 1994. Photos may contain copyright management information (CMI) at the discretion of the Photographer in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes violation of the Copyright Act 1994 and Client will be responsible to the Photographer for any penalties and awards available under the statute. Client is responsible for ensuring that the Photos are removed from MLS databases at the expiration of this Agreement.
Unless otherwise specifically provided elsewhere in this document or other signed agreement between the parties, any grant of rights is limited to a term of either one (1) year from the date of this Agreement, or (2) at the termination of Client’s representation of the Property, whichever occurs first. Further use of images beyond one (1) year requires Photographer’s permission and additional fees. Rights are assigned to the Client immediately upon delivery of the Photos.
2.0 Relationship of the parties
The parties agree that Photographer is an independent contractor, and that neither Photographer, nor Photographer’s employees or contract personnel are, or shall be deemed to be, employees of Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Photographer and the Photos or any other deliverables prepared by Photographer shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
3.0 Creation
The manner and method of creating any Photographs is solely at the discretion of Photographer and the Client has no right to control Photographer’s manner and method of performance under this Agreement. Photographer will use his/her best efforts to: (a) ensure that the Photos conform to Client’s specifications; and (b) submit all Photos to Client in publishable quality, on or before the applicable deadlines.
4.0 Delivery
Photographer may select delivery of photographs in JPEG, TIFF, PNG, or other standard format, at a resolution that Photographer determines will be suitable for the Photos as licensed. It is the Client’s responsibility to verify that the Photos are suitable for reproduction and that if the Photos are not deemed suitable, to notify the Photographer with five (5) working days. Photographer’s sole obligation will be to replace the Photos at a suitable resolution but in no event will Photographer be liable for poor reproduction quality, delays, or consequential damages.
Unless otherwise specifically provided, Photographer is not responsible to provide images 1) larger than 8”x10” at 300 dpi or 2) in a format higher than 8-bit or in RAW format. Photographer has no obligation to retain or archive any Photos delivered to Client.
5.0 Satisfaction Guaranteed
Satisfaction guaranteed only apply to the client whom use direct payment method.
In the event that the client do not satisfy with the quality of photos under the Satisfaction Guaranteed, the client will not receive the final copy of the photos and will not be obligated to pay fees.
The Photographer retain all ownership and copyrights.
6.0 Fees
All fees and expenses (if applicable) payable under this agreement specified in Schedule 1.
6.1 Direct Payment method: The Client will be provided online payment methods. Photo download link will be provided after the payment has been confirmed.
6.2 Standard payment method (agency): Payments required no later than Ten (10) business days from the delivery of the Photos and payable irrespective of whether Client makes actual use of the Photos. If full payment has not been received within Ten (10) days all rights are revoked at Photographer’s discretion. In the event rights are revoked, all images in the possession of Client will be removed from all forms of media and permanently destroyed immediately. Client shall provide Photographer with written statement that all images have been removed and destroyed.
6.3 Credit/Debit card surcharges applies.
7.0 Default of Payment
7.1 In the event the Client defaults in payment, the Photographer is entitled to recover from the Client all costs that the Photographer may incur in attempting to collect any amount owing by the Client to the Photographer, whether in relation to any contract or any other account whatsoever.
7.2 In the event the Client does not settle all outstanding amounts due to the Photographer by the due date or on any terms and conditions as specified in this agreement, the Client shall pay an interest rate for late settlement in the amount equivalent to 15% per annum.
7.3 If the Client is in default, the remedies provided above shall apply as well as other remedies at common law or otherwise available to the Photographer. The Client shall be liable for any losses, costs, expenses and liabilities incurred by the Photographer in exercising its remedies and the Client hereby agrees to fully indemnify the Photographer in respect of any such losses, costs, expenses and liabilities.
8.0 Cancellation
8.1 In relation to Photos taken in the Auckland region, if the Client cancels the Agreement within two (2) days prior to the agreed day for the Photos to be taken, the Client shall pay 25% of the total fees and expenses stipulated in the Schedule.
8.2 In relation to Photos taken outside the Auckland region, if the Client cancels the Agreement within one (1) month prior to the agreed day for the Photos to be taken, the Client shall pay 25% of the total fees and expenses stipulated in the Schedule.
9.0 No Exclusivity
This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Photographer, and Photographer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Photographer.
10.0 Indemnification
Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including all legal fees and expenses, arising out of the creation or any use of the Photos or materials furnished by Client.
11.0 Acknowledgement of the Agreement
11.1 Binding Effect – The Client’s obligations to pay the Photographer the Fees is binding upon the Client and the Client’s heirs, administrators, executors, successors and permitted assigns.
11.2 Joint and Several – All Clients executing this Agreement are jointly and severally liable for the performance of all their terms. Any act or notice to, refund to, or signature of, any one or more of the Clients regarding any term of this Agreement.
11.3 Transfer and assignment – The Client may not assign this Agreement without the written consent of the Photographer. The Photographer shall have the right to assign its interest under this Agreement to a third party of professional standing.
11.4 Entire Agreement – both parties acknowledge that this Agreement contains the whole and entire agreement between the parties as to the subject matter of this Agreement.
11.5 Severability – the various provisions of this Agreement are severable and if any provision is held to be invalid or unenforceable by any court of competent jurisdiction, then such invalidity or un-enforceability shall not affect the remaining provisions of this Agreement.
11.6 Governing Law – The Law of New Zealand governs the interpretation, validity, performance, and enforcement of this Agreement.
11.7 Notices – Notices between the parties must be in writing and are effective when sent to the receiving party’s address or e-mail address.
11.8 Digital Signature – The parties consent to this Agreement being in electronic form, being signed by either of them electronically and acknowledge that an electronic signature to this Agreement is binding and valid.
11.9 Injunctive Relief – The Client agrees that in the event of a breach by the Client of any provision of this agreement, monetary damages may not be an adequate remedy and that in such circumstances the Photographer will be entitled to injunctive or other affirmative relief, or both, without such constituting an election of remedies or disentitling Photographer to each and every remedy available at law and/or in equity for a breach of this agreement.
11.10 Independent Legal Advice – Prior to entering into this Agreement, we recommend and advise that you seek independent legal advice. By signing in the relevant section, you agree and acknowledge that you have sought relevant legal advice about this Agreement, clearly read and have fully understood its contents. Each party shall pay its own costs incurred in the preparation and execution of this Agreement.