Terms of trade
By engaging with Display you agree to the following
The term Display, as mentioned in these terms and conditions, shall refer to Brendan Holt T/A Display. The term Client, as mentioned in these terms and conditions, shall be the party signing this proposal and issuing the purchase order (if applicable) to Display.
A signed contract and retainer fee are required to reserve the dates and times of the event(s). If the event(s) are rescheduled, postponed, or cancelled; or if there is a breach of contract by the client, the retainer fee is non-refundable and shall be liquidated damages to Display. The client shall also be responsible for payment for any of
Display’s materials charges incurred up to time of cancellation.
The client agrees to confirm the schedule at least one-week prior to the event(s). Notification of any changes in schedule or location must be made in a timely manner and confirmation of receipt must be obtained from Display by the client. Changes in dates can result in a fee of Display's daily rate per confirmed dates, if the requisite
notice is not given.
SHOOTING TIME / ADDITIONS
The client and Display agree that cooperation and punctuality are essential to accomplish the goals and wishes of all parties. Shooting commences at the scheduled start time and ends at the scheduled end time. If the client does not arrive at the appointed time for the event(s), shooting will commence at the scheduled start time and end at the scheduled end time. Any additional time beyond the scheduled end time will be at the sole discretion of Display and will be billed to the client. The client must ensure that all instructions and expectations regarding the
booking/order (and any subsequent variations) are agreed in writing.
VENUE AND LOCATION LIMITATIONS
Display is limited by the rules and guidelines of the location(s) and site management. The client agrees to accept the technical results of their imposition on Display. Negotiation with the officials for moderation of guidelines is the client’s responsibility; Display will offer technical recommendations only.
The client is responsible for acquiring all permits and necessary permission for all locations and surrounding properties on which Display will be performing photographic/video services.
Display reserves to right to terminate coverage and leave the location of the event(s) if the photographer from Display or its contractors experiences inappropriate, threatening, hostile or offensive behaviour from person(s) at the event(s); or in the event that the safety of the photographer from Display or its contractors is in question.
PRICING & PAYMENT
Display will discuss pricing rates with the client at the time of booking. However, all prices are subject to change at any time without notice. Display requires a deposit of 50% of the project fees be paid prior to project commencement and the 50% balance paid upon client approval of the project’s final deliverable. If for any reason, the client suspends or cancels the project after the terms and conditions have been signed, Display will retain the entire deposit as compensation for services rendered. In the event of project cancellation, all files, remain the property of Display. The client shall pay Display the various amounts payable in accordance with the booking order / agreement. If Display’s fee and expenses are not estimated in advance, or for any goods or services different or additional to the booking order, then the client shall pay the amount invoiced by Display in accordance with Display’s price list. Display may require a deposit or payment of part or all of the amounts due in advance. Unless otherwise specified in the agreement, payment of all other amounts is due within 7 days of invoice. Display retains complete copyright until payment is made in full.
When applicable, the client is responsible for all travel, accommodation, meal and transport costs unless provided by the client. All travel expenses are based on the distance between the event location(s) and Display’s office/studio address. Unless otherwise stated in writing, the client shall be charged for Displays travel costs by set fee, mileage fee or in any manner that Display chooses.
In the event that any monies are not paid in full on the due date, Display shall be entitled to: a charge interest at a rate of 5% per week overdue on any amounts outstanding; b recover any debt collection costs and related legal expenses (on a solicitor-client basis); and c suspend any further work until all amounts owing and any costs incurred are paid in full. Late fees apply compounding weekly with $40+gst admin fees added weekly. Copyright infringments will apply and failure to complete final payment within 4 weeks unless otherwise discussed and agreed to in writing will result in invoice being passed onto debt collection company where the client is responsible for all costs associated of invoice and of collection company’s charges. Display is not responsible for any additional or associated costs as a result of gaining payment of the overdue invoice.
The client shall reimburse Display for all job-related costs where Display makes payment to others on behalf of the client. Display may add a service charge or commission, determined at Display’s absolute discretion. Unless otherwise specified in the agreement, the client must pay all job-related costs and service charges/commissions to Display within 7 days of invoice. Long distance travel including airfare, lodging, ground transportation, meals, and all other related travel expenses are not included in the professional services fees. These fees are billed at cost.
CHANGES TO THE ESTIMATE
Estimates of fees and job-related costs are estimates and not firm quotations and are liable to alteration. Display must bring any increase to the estimate, of 10% or more, to the attention of the client. Any change to the job specifications made or agreed by the client may alter the fees and job-related costs.
Quotations are only for work produced according to the original specifications. Client revisions, additions, changes and/or alterations, whether requested verbally or in writing, represent work performed in addition to such original specifications. All such work shall be charged for at Display's current rates.
Subject to any specific terms in the agreement, if the client postpones or changes the date of the booking order, the following shall apply:
A: within 1 working day of the booked shoot day, the client must pay a fee of 50% of Display's daily fee for each day which is postponed.
B: with more than 2 working days’ notice, the client must pay a fee of 25% of Display's daily fee for each day which is postponed.
C: the client must pay Display for all job-related costs incurred.
The client acknowledges and agrees that these postponement fees fairly reflect the loss suffered Display and Display's ability to re-schedule work and re-allocate resources, depending upon the amount of notice given.
When a booking order is confirmed by the client, the client becomes liable for payment to Display and Display becomes liable to complete the shoot, subject to the terms and conditions of this agreement.
Cancellation of the booking order by the client must be in writing and must give reasonable notice to Display. Subject to any specific terms in the agreement, if the client cancels the booking order:
A: within 1 working day of the booked shoot day, the client must pay a fee of 100% of the Display’s estimated/quoted fees
B: giving notice of cancellation of greater than 1 working day and within 3 working days of the booked shoot day, the client must pay a fee client must pay a fee of 75% of Display’s estimated/quoted fees
C: giving notice of cancellation of greater than 3 working days and within 1 week of the
booked shoot day, client must pay a fee of 50% of the Display’s estimated/quoted fees
D: the client must pay Display for all job-related costs incurred.
The client acknowledges and agrees that these cancellation fees fairly reflect the loss suffered by Display and Display's ability to re-schedule work and re-allocate resources, depending upon the amount of notice given.
If the client cancels an order or withdraws material while work is in process and/or prior to completion of the end product, and/or after the execution of this Terms of Trade contract, Display assumes no responsibility for the completion of the end work and is entitled to compensation for all work completed at the time of cancellation
A weather-permitting booking must be agreed between the client and Display prior to the shoot. Upon postponement or cancellation of a shoot due to bad weather the client must pay Display all job related costs incurred up until the time that the shoot was postponed, and the client must pay a fee of 75% of the Display’s estimated/quoted fees. The client is responsible for taking out weather insurance.
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 Display for all work in progress and any job-related costs incurred at that time.
Display is not responsible for compromised coverage due to causes beyond the control of Display including but not limited to obtrusive persons, lateness of the client or associates, weather conditions, schedule complications, incorrect addresses provided to Display, rendering of decorations, or restrictions of the locations. Display is not
responsible for backgrounds or lighting conditions which may negatively impact or restrict the photo coverage. Display is not held liable for missed coverage of any part of the event(s). Display will not be held accountable for failure to deliver images/video of any individuals or any objects at the event(s).
LIMITATION OF LIABILITY
Display’s liability to the client for any and all costs, loss or damage suffered by the client, however caused (including negligence), arising out of or connected with the performance or failure of performance of any photographic/video works or photographic/video services supplied by Display, shall not exceed the full value of the payments made by the client under the agreement. In the unlikely event that Display is unable to perform to the guidelines of this contract due to an injury, illness, act of god, act of terrorism, or other cause beyond the control of Display, Display will make every effort to secure a replacement. If the situation should occur and a suitable replacement is not found, responsibility and liability is limited to the return of all payments received for the event(s). Display is not responsible for any financial obligations, agreements or terms of the replacement.
In the unlikely event that digital files have been lost, stolen, or destroyed for reasons beyond the Display’s control, including but not limited to camera, hard drive, or equipment malfunction, Display’s liability is limited to the return of all payments received for the event(s). The limit of liability for a partial loss of originals shall be a
prorated amount of the exposures lost based on the percentage of total number of originals. Display is not liable for the loss of images beyond the lesser of the final delivery of all products included in the package or one year.
Where the client requires photographic/video works on an urgent basis (which includes where Display is unable to re-shoot or correct a shot because of an urgent deadline) Display 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.
For the avoidance of doubt, Display shall not be liable for:
A: any loss or damage arising by reason of any delay in the completion of the photographic/video works; or
B: any loss of profits or revenues; 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.
The client releases Display from any and all liability relating to colour reproduction of supplied works on any system not under the direct control of Display. Where Display supplies the client with photographic/video works, the client acknowledges that photographic/video works may fade or discolour over time due to the inherent
qualities of materials used, and releases Display from any liability for any claim based upon fading or discolouration. Where a colour is unable to be reproduced accurately due to limitations in capture and output technology, the client releases Display from any and all liability in regard to colour reproduction.
QUALITY OF PHOTOGRAPHIC WORKS
Where photographic/video 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 Display. Display has the right to rectify the defect within a reasonable time, having regard to the urgency of the work. If rectified, Display is entitled to be paid the full fee
and job-related costs, 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 Display has satisfied the artistic quality and interpretation requirements of the shoot. If the representative is not at the shoot, then Display’s judgement is absolute within the limits (if any) imposed by any documented agreements on the nature of the intended work. If Display produces photographic/video works that are in the same style and structure as Display’s past work (by reference to Display’s portfolio/website), the client is deemed to have accepted Display’s artistic interpretation. If there is a dispute as to artistic interpretation, which is unresolved after good faith
discussions between Display and the client, and where Display is a member of a recognised photographic association or society, the chief executive (or equivalent) of that association or society shall determine the dispute. That decision shall be final and binding.
The client undertakes to, and does hereby, indemnify Display for any loss, claim, damage, or expense (including costs incurred on a solicitor client basis) suffered or incurred as a result of:
A: any breach by the client of the agreement;
B: any illegal or defamatory photographic/video works produced for the client;
C: any infringement of an intellectual property right of any person; or recovering any moneys due
D. contains any matter that is libellous or scandalous, or invades any person’s right to privacy or other personal right,
E: fails to comply with any local, national or international law, act or regulation.
Such loss, claim, damage or expense shall be moneies due for the purposes of these terms of trade and conditions. 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.
The parties agree that Display has the irrevocable and unrestricted right to use and publish photographs of the client or in which the client may be included, for editorial, trade, advertising, educational and any other purpose and in any manner and medium; to alter the same without restriction; and to copyright the same without restriction. The client releases all claim to profits that may arise from use of images. The client is responsible for making all payments (including rollover fees) and fulfilling all other obligations to contractors. It is the responsibility of the client to obtain all model releases, moral right waivers and privacy waivers. To ensure proper recording of others’ intellectual property rights, which may be part of the photographic works, the client shall, on a request by Display, provide evidence of these model releases to Display. Where the client requests Display to engage contractors, Display shall do so as agent for the client and the client indemnifies Display against all costs, disbursements and other obligations arising from that agency. The client indemnifies Display against any loss, claim, damage, or expense (including costs incurred on a solicitor client basis) suffered or incurred as a result of the client not obtaining any required consent or authority from any persons appearing in such images.
FILM AND COPYRIGHTS
Display shall grant to the Client a perpetual, non-transferable licence to use the photographic/video works upon receipt by Display of full payment of all amounts owed to Display by the Client in relation to the photographic/video works and the agreement, except where Display otherwise gives express written permission.
The Client agrees that it shall not use the photographic/video works for the purpose of defamation or otherwise causing harm to another individual or business. Display shall not be responsible or accountable for any harm caused by photo or video(s) captured and used in a disrespectful or harmful manner. The client hereby indemnifies Display in respect of any loss, claims, damages or expenses (including costs incurred on a solicitor client basis) incurred by Display arising from any use of the photographic/video works; and Display retains the rights described in these terms and conditions. The client acknowledges that Display always retains the right to use the photographic/video works in any manner at any time and in any part of the world for the purposes of:
A: entering the photographic/video works into photographic/video 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 Display’s work, use of sale as prints on their online store, including through the use of social media; and
C: submitting the photographic works for Display in art galleries or other premises; and d using the photographic/video works for any other purpose within Display’s business activities unless otherwise discussed and agreed to in writing. This licence must not be assigned by the Client to any third party without Display’s prior written permission (which shall not be unreasonably refused) but may be sublicensed by the client to the advertiser named in the agreement (if any) on the same terms and conditions of this licence (excluding any further right to sublicense). Any third party clients not involved in this contract seeking use and copyright ownership of any material produced by Display will need to communicate directly in writing with Display to discuss requests and to obtain copyright usage where requested for use. Associated costs will be agreed to. Any breach of the agreement by the client (or by the advertiser, with the client’s knowledge) which results in damage to the professional reputation of Display, entitles Display to compensation from the client for that damage in addition to any other remedies available to Display. Any conceptual work developed by Display, submitted to client for consideration but not incorporated into the final photographic/video works, will remain the exclusive property of Display.
Display asserts moral rights, including attribution rights, in respect of the photographic/video works (unless expressly waived in the agreement in writing). Each use of any photographic/video works by the client, including where the client publishes or otherwise uses the photographic/video works on social media, must be accompanied by an adjacent credit line acknowledging the photographer’s name and copyright in the photographic/video works in the form specified in the agreement, or if not so specified, then in a form approved in writing by the photographer. If the client fails (for whatever reason) to provide the attribution described above, then in addition to all other rights under the agreement or at law, the client shall be liable to pay a non-attribution fee calculated at 200% of the photographic/video works, which the client acknowledges and agrees to be a fair and reasonable pre-estimate of the loss suffered by Display.
The client’s right to use the photographic/video works under the licence does not include the right to remove, alter or otherwise affect any rights information accompanying or relating to the photographic/video works, including (without limitation) any logos, branding, notices or metadata accompanying or part of the photographic/video works recording creator details, copyright ownership or publication status of the photographic/video works. The client shall not alter or remove any notices attached to the photographic/video works and shall take all reasonable steps to respect and preserve Display’s copyright and other rights. Where Display has placed restrictions on access to or use of the photographic/video works, the client shall not defeat (or attempt to defeat) such restrictions.
STORAGE AND BACKUPS
The client acknowledges that the client is responsible for the storage and backup of the photographic/video works supplied by Display. While the photographer will follow its usual backup procedures (if any) upon delivery of the photographic/video works, Display shall not be liable under any circumstances if unable to produce backups or future reproductions of the photographic/video works upon the request of the client. Where backups are available, these may be made available to the client for a fee. Display shall retain intermediate materials (physical or digital) until client has accepted the related end product. If requested by the client, intermediate materials shall be stored for an additional period of up to one year, for which a charge can be made. In the event that materials provided or originated by the client have remained inactive for more than two years, Display will consider such materials abandoned and said property will revert to Display's ownership. All the client's property will be stored at the client’s risk. While every reasonable effort is made to protect the client’s data, the integrity of stored electronic data and/or media cannot be guaranteed due to technological limitations of media and devices available.
CAPTURE AND DELIVERY
Display is not liable to deliver every photographic image or video taken at the event(s). The determination of images delivered to the client is left to the discretion of Display.
POST-PRODUCTION AND EDITING
The final post-production and editing styles, effects, and overall look of the images/video are left to the discretion of Display.
Display retains ownership and copyright of all RAW photo & video material captured, these files will not be given.
The client must advise Display as to whether any material or information supplied is of a confidential nature. Display will keep that material or information confidential, except where disclosure is reasonably necessary to enable Display to perform the agreement.
CLIENT PROPERTY AND MATERIALS
Client property and all property and material supplied to Display by or on behalf of the client is held at the client’s risk and Display accepts no responsibility for the maintenance or insurance of that property or material. The client must pay any sum charged or incurred by Display for handling or storing property or material supplied by or on behalf of the client. Where property and materials are left with Display without specific instructions, Display may dispose of them at the end of six months from the date of receiving them and retain the proceeds.
CONSUMER GUARANTEES ACT 1993
The Consumer Guarantees Act 1993 may apply to the photographic/video works provided by Display, if the client acquires those photographic/video works for personal, domestic or household use or consumption. If this act applies, nothing in the agreement will limit or exclude the client’s rights under this act. If the client is acquiring the photographic/video works for business or trade purposes, then the client’s rights are subject to the agreement only and the Consumer Guarantees Act 1993 shall not apply.
PRIVACY AND PERSONAL INFORMATION
As part of creating the photographic/video works, Display may collect and retain personal information about the client. The personal information may be used by Display for communicating with the client for any purpose relating to the photographic/video works (including arranging third party services), direct marketing and in connection with these terms and conditions. The client authorises Display to collect, retain, use personal information for these purposes (including assessing credit worthiness), and to disclose that information to any person or entity for these purposes. Personal information collected by Display shall be retained in Display’s database. The client may access and request correction of any of the client’s personal information by contacting Display. Where section 105 of the Copyright Act 1994 applies, Display shall obtain any necessary consent in accordance with section 107 of that Act, provided however that the client agrees that Display has the rights described unless those rights are expressly excluded in the booking/order.
HEALTH AND SAFETY
The client acknowledges and agrees that the client is responsible for, and shall take all reasonably necessary steps to ensure, its own personal safety and that no action or inaction of the client causes harm or risk to the health and safety of others. Notwithstanding the above, the client agrees to comply with any reasonable health and safety directions given by Display.
Except for an obligation to pay money, neither the client nor Display shall be liable for any act, omission or failure to fulfil its obligations, or any loss or damage arising directly or indirectly due to an act of god, explosion, fire, flood, storm, earthquake, subsidence, armed conflict, strike, lockout or labour disputes, civil commotion, intervention of a government, epidemic, accidents, electrical, heat, light or telecommunication failures, interruption to transportation, weather or any other cause outside Display’s control.
Display and the client agree to use their best efforts to resolve any dispute which arises through good faith negotiations. Either party may raise a dispute by written notice to the other party. Within 3 working days of receipt of a dispute notice, the parties shall meet (or otherwise communicate if meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis. Neither party may commence any litigation in relation to the dispute unless 14 days have passed since the parties met (or otherwise communicated) and endeavoured in good faith to resolve the dispute on mutually acceptable terms.
In the event of a conflict or inconsistency between these terms and conditions and the booking/order, the booking/order shall prevail.
The booking/order, together with these standard terms and conditions and any other special conditions agreed in writing between the parties, shall constitute the entire agreement between the parties. Each booking/order made by the client shall (together with these standard terms and conditions and any other special conditions agreed in writing between the parties) constitute a separate agreement between the parties.
These terms and conditions are governed by, and to be construed in accordance with New Zealand Law. The client irrevocably submits to the exclusive jurisdiction of the New Zealand Courts.
For the purposes of the agreement, the following definitions shall apply unless the context requires otherwise:
Advertiser: means the end user of the photographic/video works where Display is engaged to produce the photographic/video works by an advertising agency, design firm, or other intermediary.
Agreement: means the booking/order, together with these standard terms and conditions and any other special conditions agreed in writing between the parties.
Booking/order: means an order or request by the client for the production, supply or viewing of photographic/video works, including (without limitation) bookings, orders, quotes, estimates, proposals, and appointments made for a shoot, sitting or viewing.
Client: means the person or entity listed on the booking/order who engages or instructs Display to produce photographic/video works. Job-related costs: means any costs and expenses incurred by Display on the client’s
behalf in providing photographic services or in the creation of the photographic/video works.
Licence: is a right granted by Display to the client to use the copyright works of Display on the terms set out above.
Photographic/video works: means the deliverable works specified in the booking/order and created or supplied by the photographer, including photographs, photographic prints, moving images (video), transparencies, negatives, digital files, and images in any form or medium.
Photographer: means the photographer and where the context requires may include, the studio, photographic company, employees or sub-contractors.
Price list: means Display’s list or schedule of prices for goods and services at the date of the agreement.
Updated March 5th 2021
C/- Conway Lane Law