AIPA STANDARD TERMS AND CONDITIONS OF ENGAGEMENT
 
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LICENCE GRANTED TO CUSTOMER

"Order" includes any estimate upon which verbal confirmation is given or any order confirmation is given by the customer or any work accompanied by an invoice for service.

Except as provided in clause 3, the copyright in all Photographic Works ("Photographic Works" includes transparencies, negatives, prints, digitised images or images in electronic or any other form or medium furnished by the Photographer) resulting from the Invoice or the Order Confirmation Form, remains the property of 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 customer. This overrides section 21(4) of the Copyright Act 1994 in accordance with section 21(5) of the Copyright Act 1994.

The Photographer grants the customer a Licence to reproduce and publish the Photographic Works for the purposes, territories and time period specified, and on the terms and conditions set out in the Order Confirmation Form and these Terms and Conditions of Engagement. The Photographer always retains the right to use the Photographic Works in any manner at any time and in any part of the world for the purposes of:

  1. Entering 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
  2. Advertising or otherwise promoting the Photographer’s Photographic Works; and
  3. Submitting the Photographic Works for display at art galleries or other premises.

CONDITIONS OF LICENCE

The Licence to use the Photographic Works begins from the date of full payment of the Invoice. No use may be made of any Photographic Works before full payment of the Invoice without the Photographer’s express permission.

This Licence applies to the customer named on the Invoice only and must not be assigned to any third party without the Photographer’s prior written permission, which shall not be unreasonably refused.

The Customer is further licensed to do the following:

  1. use only a portion of the Photographic Works,
  2. manipulate, distort or make other alterations (including overprinting by text or other Photographic Works) of the Photographic Works,

unless that right under the Licence is removed by marking the checkbox "No right to alter image" on the Estimate/Order Confirmation form.

Copyright in any new Photographic Works created from any manipulation, alteration, distortion or overprinting of text of the licensed Photographic Works shall remain with the Photographer and shall be licensed to the customer on the same terms and conditions in this agreement. Any breach of these conditions knowingly permitted by the customer which results in damage to the professional reputation of the Photographer, entitles the Photographer to compensation from the customer for that damage in addition to any other remedies available to the Photographer.

The customer shall not, without the prior written permission of the Photographer, digitally capture or store the Photographic Works in any form of electronic medium, except for the purpose of colour separation, and provided that the file or other medium in which the Photographic Works are captured or stored must be destroyed immediately after its use for that purpose.

Where so indicated on the Order Confirmation Form, each use of any Photographic Works by the customer must be accompanied by an adjacent credit line acknowledging the Photographer’s name and copyright in the Photographic Works.

COPYRIGHT OF THE WORKS

All copyrights that arise out of performance of the Photographer’s 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 Photographic Works and the customer shall be supplied with the Photographic Works for copying on the basis of a non-exclusive license except where any material includes any trade mark or get up of the customer in which case the license shall be only for use of the copyrights for the purpose the copyright was originally created for. The customer shall have the right to seek further licenses for reuse of any copyright on agreement of a reasonable fee for that use.

COPYRIGHT ASSIGNED

Where this Order specifies that copyright in the Photographic Works supplied pursuant to this Order is to be assigned to the customer in consideration of the customer’s payment for those Photographic Works, the Photographer assigns to the customer copyright in all Photographic Works supplied pursuant to this Order. It is the responsibility of the customer to obtain all model releases and moral rights and privacy waivers necessary for the use of assigned copyright in the Photographic Works by that customer. As a condition of this assignment the customer agrees to indemnify the Photographer in respect of any liability to the Photographer arising from any use of the assigned copyright material.

MORAL RIGHTS

Unless indicated on the Estimate/Order Confirmation form, the Photographer’s moral rights remain. Any waiver of such moral rights are waived only to the extent possible by the Photographer, and no waiver is implied with respect to any other persons interest in works included or which are a component of the Photographic Works.

PAYMENT

Fees are payable as outlined on the Invoice/Statement Form or as arranged by the Photographer.

JOB-RELATED COST

The customer shall reimburse the Photographer for all Job-related Costs ("Job-related Costs" means the costs and expenses incurred by the Photographer on the customer’s behalf in providing Photographic Services to the customer and as detailed on any Invoice). Where the Photographer makes payment to others on behalf of the customer, the Photographer may add a service charge, determined at the Photographer’s absolute discretion, to its invoiced costs. Unless otherwise arranged, the customer must pay all Job-related Costs and any service charges to the Photographer within 7 days of receipt of the Invoice. The customer is not entitled to any property in:

  1. any authored or artistic works created by the Photographer to support the Photographic Works, or
  2. any materials used for the creation of an authored or artistic work, as a result of plans or drawings, which are commissioned by the Photographer, or
  3. any acquisition of goods for use in supporting the Photographic Works.

Such goods, materials, authored or artistic works shall remain the property of the Photographer, unless otherwise agreed between the Photographer and the Customer.

URGENT WORK

Where the customer wants Photographic Works on an urgent basis, which includes where the Photographer is unable to re-shoot or correct a shot because of an urgent deadline, the Photographer 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.

CHANGES TO THE ESTIMATE

Statements of fees and Job related Costs are estimates and not firm quotations and are liable to alteration. The Photographer must bring any change to the estimate to the attention of the customer. Any change to the job specifications made by the customer may change the estimate of the fees and job related costs.

CANCELLATION FEES

When a booking is confirmed as definite, the customer becomes liable for payment to the Photographer and the Photographer becomes liable to complete the job.

Where the customer cancels the booking:

  1. Within 1 working day of the booked shoot day, the customer must pay all expenses incurred for the shoot and a fee of 100% of the Photographer’s standard fee.
  2. And gives notice of cancellation of greater than 1 day and within 3 days of the booked shoot day, the customer must pay all expenses incurred for the shoot and a fee of 50% of the Photographer’s standard fee.
  3. Gives notice of cancellation of greater than 3 days and within 1 week of the booked shoot day, the customer must pay all expenses incurred for the shoot and a fee of 25% of the Photographer’s standard fee .

POSTPONEMENT FEES

Where the customer postpones or changes the date of the shoot:

  1. Within 1 day of the booked shoot day, the customer must pay a fee of 50% of the Photographer’s daily fee for each day which is postponed.
  2. With more than 1 days notice, the customer must pay a fee of 25% of the Photographer’s daily fee for each day which is postponed

WORK SUSPENDED ON CUSTOMER’S INSTRUCTIONS

Where the customer instructs that work is to be suspended for a period of 30 days or more, the customer must, at the time of suspension, pay the Photographer for all work in progress at that time.

RETURN OF PHOTOGRAPHIC WORKS

The customer must return all Photographic Works undamaged to the Photographer within 15 working days from the date of expiry of the Licence.

Where any Photographic Works have not been returned as required, the customer must pay a fee of $50 per day for each of the Photographic Works for every day or part day after the due return date and upon written notification by the Photographer that the Photographic Works have not been returned.

For each of the Photographic Works that is lost or damaged, the customer must pay the Photographer $1,500.00 within 7 days from the date of the expiry of the Licence.

CLIENT CONFIDENTIALITY

The customer must advise the Photographer whether any material or information communicated to the Photographer for the purpose of the photography is confidential. The Photographer must keep any such confidential material or information confidential , except where it is reasonably necessary to do otherwise to enable the Photographer to carry out the Photographer’s obligations, or exercise any of the Photographer’s rights in relation to the Invoice.

RESPONSIBILITY FOR CONTRACTORS

The customer is responsible for making all payments (including rollover fees) and fulfilling all other obligations to person(s) ("Contractors") who supply any product or perform any service in respect of the shoot. Where Contractors are models, the customer is responsible for obtaining all necessary model releases. To ensure proper recording of others intellectual property rights which may be part of the Photographic Works, the customer within 7 days, on a request by the Photographer, shall copy evidence of these model releases to the Photographer. Where the customer requests the Photographer to contract Contractors on behalf of the customer, the Photographer acts as agent for the customer and the customer indemnifies the Photographer against all costs, disbursements and other obligations arising from the Photographer acting as agent for the customer.

INDEMNITY FOR BREACHES OF INTELLECTUAL PROPERTY

The customer fully indemnifies the Photographer against any claims, costs, or expenses arising out of any illegal or defamatory Photographic Works produced for the customer and any infringement of any intellectual property right of any person.

The customer is responsible for obtaining any authorisation, clearance, licence or other form of approval necessary for the lawful use of third party intellectual property works.

CUSTOMER PROPERTY AND MATERIALS SUPPLIED

Customer property and all property and material supplied to the Photographer by or on behalf of the customer is held at the customer’s risk and the Photographer accepts no responsibility for the insurance of such property or material.

The customer must pay any sum charged by the Photographer for handling or storing property or material supplied by or on behalf of the customer. Where property and materials are left with the Photographer without specific instructions, the Photographer may dispose of them at the end of six months from the date of receiving them and retain the proceeds.

PHOTOGRAPHIC WORK OF UNACCEPTABLE QUALITY

Where Photographic 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 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 customer any extra fee or cost for rectifying the defect.

Where there is a representative of the customer 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 Photographer’s 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 Photographer’s past work (by reference to the Photographer’s portfolio), the customer is deemed to have accepted the Photographer’s artistic interpretation.

If there is a dispute as to artistic interpretation which is unresolved after negotiations between the Photographer and the customer, then the dispute shall be referred to the President of the Advertising and Illustrative Photographers Association who shall appoint a Photographer to determine the matter.

WEATHER CONDITIONS

A weather permitting booking must be agreed between the customer and Photographer prior to the shoot. Upon postponement or cancellation of a shoot due to bad weather the customer must pay the Photographer all expenses incurred up until the time that the shoot was postponed and 50% of the Photographer’s fee which was to be charged for the shoot.

The customer is responsible for taking out weather insurance.

WHERE SUPPLY FOR BUSINESS PURPOSES, CONSUMER GUARANTEES ACT 1993 NOT TO APPLY

The customer acknowledges that where the Photographic Works or Photographic Services ("Photographic Services" means the provision by the Photographer of Services related to the producing of Photographic Works and includes the supply of any other goods or services by the Photographer) supplied under the Invoice and Order Confirmation Form are purchased for business purposes, the Consumer Guarantees Act 1993 shall not apply.

PHOTOGRAPHER NOT LIABLE FOR LOSSES

Except as provided for by the Consumer Guarantees Act 1993, the Photographer shall not be liable for:

  1. Any loss or damage arising by reason of any delay in the completion of the Photographic Works
  2. Any loss of profits
  3. Any indirect or consequential loss of whatever nature; or
  4. Any loss resulting from any errors or omissions arising from an oversight or a misinterpretation of a customer’s verbal instructions
  5. Any loss arising directly or indirectly from any breach by the Photographer of any of its obligations under these Terms and Conditions of Engagement or from any negligence on the part of Photographer or its employees.

LIABILITY OF PHOTOGRAPHER LIMITED

Except where provided to the contrary by the Consumer Guarantees Act 1993, the Photographer’s liability to the customer for any and all costs, loss or damage suffered by the customer, however caused, arising out of or connected with the performance or failure of performance of any Photographic Services by the Photographer, shall not exceed the full value of the payments made by the customer under the Invoice.

CONTRACT MAY BE TERMINATED ON NOTICE

Effective termination of this Agreement by the customer must be in writing and give reasonable notice to the Photographer. The customer must compensate the Photographer for all fees and expenses incurred by the Photographer until the date of termination. Upon receipt of such notice from the customer, the Photographer must take immediate steps to bring the photographic services to a close and to reduce expenditure to a minimum.