Terms and Conditions of Business for Commissions

1. Agreement

The Booking Form and these Terms and Conditions shall form the entire agreement between the parties save for any variations agreed in accordance with these Terms and Conditions and no variation or modification shall be effective unless accepted by the Photographer in writing, including e-mail.

2. License granted to Client

The copyright in all Photographic Works resulting from the Commission remains the property of the Photographer, unless surrendered to the Client in express, written form.

The Photographer grants the Client a non-exclusive License to use those parts of the Photographic Works selected by the Photographer and presented to the Client. However, this License does not include the right to copy, reproduce or publish the Photographic Works or any part of the Photographic Works. The Client may license any or all of the Photographic Works from the Photographer’s selection.

The Client acknowledges that the purpose of the creation of the Photographic Works includes the right of the Photographer to:

a/ enter 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/ advertise or otherwise promote the Photographer’s Work; and

c/ submit the Photographic Works for display at art galleries or other premises; and

d/ use the Photographic Works for any other purpose within the Photographer’s business activities.

3. Original Photographic Material

All negatives and electronic images created by the Photographer shall remain the property of the Photographer who undertakes to take reasonable measures to store all such negatives and electronic images safely and make them available for future reproduction for a period up to 5 years after the last day or hour of the Commission. Photographic prints will become and remain the property of the Client. However the Client specifically acknowledge that ownership of prints does not imply ownership of the copyright in the images on them, or any right to reproduce, or authorise the reproduction of, such images.

4. Conditions of License

This License to use, and the right to use, the Photographic Works comes into effect from the date of full payment of the Order, except where the Photographer gives express written permission.

5. Copyright in the Works

All copyright that arises out of the performance of the Photographer’s obligations under this contract shall arise not by commission but shall be the creation of the Photographer. The Photographer shall remain the first owner of the Photographic Works for use on the basis of the terms of this License. The Client shall have the right to seek further licenses for reuse of any copyright at the Photographer’s normal prices at the time of the request.

6. Moral Rights

The Photographer asserts his or her moral rights in respect of the Photographic Works and any references to the Photographic Works shall be accompanied by full attribution to the Photographer in a form to be approved by the Photographer.

7. Privacy and Personal Information

The Photographer shall abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection.

8. Payment

A Deposit is required when the client signs this agreement. The Agreed Date is reserved only when the Deposit is received by the Photographer. The Deposit will apply towards the Fee payable for the Commission ordered by the Client.

The Client shall pay the Photographer the agreed Fee in accordance with the Booking and/or Order agreement(s). The balance of the Fee must be paid no later than 7 days following the Agreed Date. Payment for additional services including additional original or copy photographs and/or albums must be made upon any order for same being made by the Client. Any bank charges incurred due to returned cheques will be debited to the Client.

9. Additional Services

Any services, including design work, production of albums and so on over and above that included in the Commission and referred to on the Booking Formwill be supplied by the Photographer according to a pre-agreed, separate Fee. Any variations over and above that agreed as part of the Commission will be charged at the Photographer’s current rates at the time of the Commission and will be included in the final account.

10. Subsistence

The Photographer reserves the right to charge for travel and accommodation expenses. Return journeys required in performance of the Commission in excess of 50 km attract a mileage charge of $0.40 per km. Overnight accommodation may be required for weddings over 100 kms away at the expense of the Client and must be agreed between the parties hereto prior to the Commission being undertaken

11. Interest

Any monies not paid in full in accordance with clause 7 may be charged with interest at a rate of 2% per month or part month overdue.

12. Indemnity

The Client undertakes to indemnify the Photographer 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 the recovering any moneys due and such loss, damage or expense shall be moneys due for the purpose of these terms and conditions.

13. Cancellation or Postponement of Booking

Where the client cancels or postpones a Commission, the Photographer reserves the right to charge a cancellation fee in accordance with the following scale:

- The Deposit may be returned if cancellation takes place more than 12 months prior to the Booking date and upon a similar Commission being obtained in its place;
- 35% of the Agreed Fee if cancellation takes place between six and twelve months prior to the Commission;
- 50% of the Agreed Fee if cancellation takes place less than 6 months prior to the Commission;
- 100% of the Agreed Fee if cancellation takes place within 30 days of the Commission.

Should the cancelled Commission turn out to be a postponement, then at the absolute discretion of the Photographer, and subject to availability, the Deposit may be applied to any revised date for the Commission to take place and this revised date shall be deemed to be the new Agreed Date for the purposes of these terms and conditions.

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.

14. Client Confidentiality

The Client must advice the Photographer as to whether any material of information communicated is of a confidential nature. The photographer will keep confidential material or information in confidence for the purposes of the photography, except where it is reasonably necessary to enable the Photographer to carry out their obligations in relation to the Commission.

15. Indemnity for breaches of Intellectual Property

The Client shall full indemnify the Photographer in respect of any claims, costs or expenses arising out of any illegal or defamatory Photographic Works produced for the Client or any infringement of an intellectual property right of any person.

16. Colour Matching and Variations

Owing to photo chromatic anomalies caused by a combination of certain dyes and materials, especially in man-made fibres, it is sometimes impossible to record on camera the exact colour of materials as perceived by the human eye. When processing images, the Photographer will endeavour to achieve a pleasing overall colour balance based on natural flesh tones. It is understood that some colours may not remain consistent throughout a set of photographs owing to variations in lighting conditions.

It is also understood that all photographic printing is undertaken within the technical limitations of the process and that colour may not be identical over the whole range within a subject. The colour balance of prints made at different times or in varying sizes may also be variable. Due to the limitations of computer monitors it is understood that images may appear differently according to the specification of each monitor and that prints will not match images rendered on any particular computer monitor.

Where images are made available for use on a CD/DVD player reasonable steps are taken to ensure compatibility, but CD/DVD discs may not play on all CD/DVD players, particularly older models. All print and presentation sizes quoted are approximate and subject to the discretion of the Photographer.

17. Consumer Guarantees Act 1993

The Consumer Guarantees Act 1993 may apply to the licensed Photographic Works provided by the Photographer if the Client acquires those licensed Photographic 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 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.

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; 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 of any of their obligations under the Booking Form or from any cancellation of the Commission or from any negligence on the part of the Photographer.

19. Liability of the Photographer Limited

The Photographer will not be held responsible for the lack of photographic coverage caused by any persons connected or otherwise with the Commission or the Client not being available for photography during the Agreed Time or during the course of the Commission, nor by restrictions placed on the Photographer by officials of any location where the Client requires the Commission to take place (including churches, registry offices or licensed marriage venues).

The Photographer does not guarantee any specific picture nor to include any specific person background, location, props, or arrangement, although every effort will be made to interpret the Client’s wishes and deliver in accordance with the Booking Form. The Photographer is limited on the photographs that can be taken by any laws, guidelines or rules of any kind set by any official of any location or venue where the Commission is to take place.

The Photographer shall be granted artistic license in relation to the poses photographed during the Commission and the locations used. Although every effort will be made to comply with the brief provided on the Booking Form the Photographer’s judgment regarding the location, poses, composition, lighting and number of photographs taken shall be deemed correct and rejection of the photographs provided in connection with the Commission on this basis shall not be permitted and the Client hereby indemnifies the Photographer against any loss, cost, claim or action arising in this regard.

The Client hereby accepts the aforesaid restrictions (without limitation) that may arise in carrying out the Commission and the effect they may have on it and negotiation with any officials for moderation of any rules, laws or guidelines is entirely the Client’s responsibility.

The Photographer’s liability to the Client for all costs, loss or damage suffered by the Client, however caused, arising out of or connected with the performance or failure of photographic services by the Photographer, except where provide to the contrary by the Consumer Guarantees Act 1993, shall not exceed the full value of the payments made by the Client under the Booking Form.

The photographer will use all reasonable endeavours to contact other photographers in the unlikely event that he is unable to undertake the Commission and the Client hereby accepts liability for any extra fees incurred in a replacement photographer performing the Commission.

20. Commission may be Terminated on Notice

Effective termination of the Commission by the Client must be in writing and give reasonable notice to the Photographer. The Client must compensate the Photographer for all amounts due in accordance with the Booking Form. Upon receipt of such notice from the Client, the Photographer must take immediate steps to bring the photographic services to a close.

21. Force Majeur

Neither the Client of the Photographer shall be liable for any loss or damage arising directly or indirectly due to an act of God, fire, armed conflict, labour disputes, civil commotion, intervention of a government, accidents, interruption to transportation, weather, illness or any other cause outside the respective party’s control.

22. Insurance

The Client is hereby advised to take out suitable insurance policy cover for any expenses losses claims or actions of any kind arising in connection with (but without limitation) to both cancellation by either party and force majeur affecting the Commission or any event or matter relating to or dependent upon the Commission.

22. Declaration

The Client hereby agrees and confirms that they have read and understood the content meaning and effect of these Terms and Conditions and has been afforded the opportunity of seeking their own separate and independent legal advice prior to the signing hereto.

Client(s):      ______________________________________________
                ___________________________________________________

Date:          _______________________

Photographer: ___________________________________________________

Date:          _______________________

DEFINITIONS

The Photographer shall mean David Chadwick or such other photographer as is appointed in his place by agreement between the parties hereto.

The Client(s) shall mean the person or persons who commission the Photographer and irrespective of any third party who may in whole or in part pay any element of the Fee.

The Fee: shall mean the fee agreed between the parties hereto for the purposes of carrying out the Commission including any applicable GST.

The Agreed Date shall mean the date(s) agreed between the Photographer and the Client for the attendance by the Photographer for the purposes of undertaking the Commission.

The Agreed Time: shall mean the period, expressed in numbers of hours, agreed between the parties hereto in order for the Commission be undertaken by the Photographer.

The Booking Form shall mean the form attached to these terms and conditions.

The Commission shall mean any event, person(s), objects, places, buildings, locations that the Client instructs the Photographer to photograph and including such other details as may be recorded on the Booking Form relating to the Commission which may include details of the people to be photographed, album(s), size(s), style(s), colour, quality, quantity to be provided following completion of the Commission.