Commercial Image License Conditions for Brand Photography undertaken by Elevate Media
TERMS AND CONDITIONS OF TRADE
We know you’re busy, so we’ve tried to keep our terms and conditions relevant, clear, and easy to understand. We will always do our best to meet and, hopefully, even exceed your photography requirements. However, it’s often best for everyone to be on the same page so that we both know what’s what, who does what and when, and what happens in the unlikely event that something goes wrong.
Feel free to contact us if you have any questions.
- “Agreement” is by and between Jana Greissner from Elevate Media Limited (“Photographer”) and the client for which the Work Request is being performed (“Client”).
- “Client” includes client’s principals, employees, affiliates, and representatives.
- Client has the legal authority to enter into the Agreement on behalf of its employer, company, or organisation. Photographer’s relationship with Client is that of an independent contractor.
- “Image(s)” means all visual representations delivered to Client by Photographer, whether captured, delivered, or stored, in photographic, magnetic, optical, electronic, digital, analogue, or any other, media.
- “Publication” means any media outlets such as newspaper, magazines, websites, books and the like.
- “Work Request” means images for Social Media, Websites and Publications or any other service specified through email, phone or conversation which is to be performed by Photographer.
- “Licence” means the right to use the image as specified at the time of Work Request.
2. PUBLICATION and COPYRIGHT
Client acknowledges that Photographer is the author of the Image(s) and also the first and sole owner of all copyrights of the Image(s). All Images and copyrights remain the exclusive property of Photographer without limitation. All Publication rights to the Image(s) specifically requested by the Client to be expressed in a written form (e.g. email) where possible and sent to the Photographer.
IMAGES ARE LICENSED FOR SPECIFIC USE(S) AND ARE NOT SOLD.
Client understands and agrees that it is not buying the Image(s) but is paying only for a licence to use the Image(s) as specified at the time of the Work Request. The term of licence begins from the date Photographer receives full payment of invoice.
Copyright metadata contained within any digital file may not be altered, or removed, without the express consent of Photographer.
Unless otherwise stated, Photographer retains the right to use any Image(s) for self-promotion purposes, provided that any such use is lawful and without harm to Client.
3. PHOTOGRAPHIC INTEGRITY and ALTERATIONS
Client will not make or permit any significant alterations, including, but not limited to, additions, subtractions, or adaptations, with respect of the Image(s), alone or with any other material, without the prior express permission of Photographer. Normal reproduction adjustments for colour, contrast, brightness, sharpness, and cropping, are permitted.
4. GENERAL LIABILITY and RELEASES
Client will indemnify, defend, and hold harmless, Photographer, and Photographer’s contractors and representatives, against any and all claims, liabilities, damages, costs, and expenses, including reasonable legal fees and expenses, arising from Client’s use of the Image(s).
Photographer is not responsible for obtaining model, property, trademark, or other releases in connection with any Image(s) unless specifically stated in the Agreement. It is Client’s responsibility to obtain the necessary permissions for any Image use that require releases.
In all event, Photographer’s liability for all claims will not exceed the total amount paid in accordance with the Agreement.
Prompt receipt of full payment is a key tenet of the Agreement.
NO RIGHTS ARE GRANTED UNLESS AND UNTIL PHOTOGRAPHER HAS RECEIVED PAYMENT IN FULL. ANY USE PRIOR TO FULL PAYMENT WILL BE CONSIDERED AN UNAUTHORISED USE. CLIENT AGREES TO PAY PHOTOGRAPHER IN FULL BEFORE USING IMAGE(S) PROVIDED BY PHOTOGRAPHER.
All invoices are due upon receipt. Adjustments of amounts or terms must be requested within ten days of invoice receipt.
Photographer does not provide any receipts to Client. Photographer’s invoice will serve as Client’s receipt for work performed and services rendered.
6. CREDITING and COPYRIGHT NOTICES
Published images should where possible, identify the Photographer through a copyright notice, a hyperlink to [[brand_url]] or by using the words ‘Images by [[brand_business_name]]’.
7. CANCELLATIONS and POSTPONEMENTS
Once Client and Photographer have agreed to time(s) and date(s) for a photography assignment, Photographer will not accept other work from any other clients for agreed time(s) and date(s).
Where Client postpones or cancels an assignment, or is unable to reschedule said assignment to a time and date agreeable to Photographer, Client will be responsible for payment of any and all expenses up to the time of postponement or cancellation, plus:
(a) Thirty-five percent (35%) of Photographer’s fees for postponement, or cancellation, less than twenty-four hours from the scheduled time, or
(b) Fifty percent (50%) of Photographer’s fees for postponement, or cancellation, after Photographer has departed for location.
If the same assignment is rescheduled for a later date, full fee and any additional expenses will be charged for the actual shooting.
Any deposits paid on booking become non-refundable for cancellation, or postponement, made within seven days of photography date.
Fees for cancellation or postponement will apply irrespective of the reasons for the cancellation or postponement. However, Photographer understands that life doesn’t always happen as planned and consideration will be given in any such circumstance.
Client is responsible for sending an authorised representative to the shoot. If no representative is present, Client must accept Photographer’s judgment as to the execution of the Image(s).
(a) If Client requires a reshoot, Client will pay Photographer an additional fee of one hundred percent (100%) of the fee stated in the invoice for the original shoot, plus all expenses for the reshoot.
(b) If a reshoot is required for reasons beyond the control of Photographer or Client, including, but not limited to, weather conditions, acts of God or the fault of a third party, Photographer will not charge an additional fee, but Client agrees to pay all expenses incurred as a result of the reshoot.
9. FAILURE TO PERFORM
If Photographer is unable to supply his photographic services due to illness, mechanical breakdown, accident, acts of God, or any other cause beyond her control, then Photographer will attempt to procure the services of another professional photographer to fulfil her obligations. If that does not succeed, Photographer will return any fees paid by Client and will have no further liability with respect to this Agreement, and Photographer will not be responsible or liable for any other damages beyond the amount of this Agreement.
This limitation of liability will also apply in the event that any Images are lost or damaged through equipment malfunction, or otherwise, without the fault of Photographer.
10. KILL FEE
Provided that Photographer has executed the photography assignment in a professional and competent manner, Client agrees to pay Photographer all fees and expenses in connection with said assignment, whether or not Client uses any Image(s).
11. ARCHIVING DIGITAL FILES
While Photographer may choose to archive the Image(s), it is Client’s responsibility to properly store and archive the Image(s). Photographer cannot guarantee the availability of any Image(s) beyond the date of first delivery to Client.
Client is aware that optical, magnetic, electronic, and any other, media for storing digital data are inherently unstable. Client hereby releases Photographer and Photographer’s contractors and representatives, from any liability for any claims, damages, or costs, arising from any media supplied by Photographer which may become unusable.
12. DIGITAL FILE QUALITY
Photographer is committed to providing high quality services. Unless otherwise specified by writing by the Photographer, Photographer may deliver, and Client agrees to accept, the Image(s) encoded in an industry-standard data format that Photographer may select, at a resolution that Photographer determines will be suitable to the reproduction technology and use(s) for which the Image(s) is licensed.
Photographer uses cameras and monitors that are colour calibrated to industry standards. Due to variances in computer monitors, software and platforms, the Image(s) may display differently on other monitors. Therefore, neutrals will be set for mathematical neutrality and colour will be adjusted for pleasing tonalities.
It is Client’s responsibility to verify that the digital data, including colour profile, if provided, are suitable for reproduction of the expected quality and colour accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable (within a reasonable time frame), Photographer’s sole obligation will be to replace or repair the data, but in no event will Photographer be liable for poor reproduction quality, delays, losses, expenses, or consequential damages, resulting directly, or indirectly, from defects or errors in digital files or their use.
13. PRINT QUALITY
Photographer is committed to using high quality products. However, Client is aware that colour dyes, inks, and other materials, used in photography may fade or discolour over time. As such, Client releases Photographer, and Photographer’s contractors, and representatives, from any liability for any claims, damages, or costs, arising from any fading or discolouration of photographic prints.
14. ACCEPTANCE OF TERMS
Client may not assign or transfer the Agreement or any of the rights granted hereunder. The Agreement is binding upon, and inures to the benefit of, Client and Photographer, as well as their respective principals, employees, representatives, and successors. Client and its principals, and employees, are jointly and severally liable for the performance of all payments and other obligations hereunder.
No amendment or waiver of any items is binding unless set forth in writing and signed by the parties. E-mail and electronic signatures will be considered legal and binding. However, the invoice may reflect, and Client is bound by, Client’s oral authorisations for any additional Image(s), fees, and expenses, that could not be confirmed in writing due to the immediacy of completing the photography assignment.
The Agreement will be deemed to be a contract made under the laws of New Zealand, and for all purposes will be interpreted in its entirety in accordance with these laws. Client specifically and irrevocably confers personal jurisdiction over it by the courts of Auckland, New Zealand. Client will pay all arbitration and court costs, reasonable legal fees, expenses, and legal interest, on any award or judgment in favour of Photographer.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
In addition to oral and written agreements, use of any Image(s) by Client will constitute acceptance of all the above terms and conditions.