TERMS AND CONDITIONS OF ENGAGEMENT

These terms outline the terms of our agreement, including terms regarding cancellation and

how any dispute between us is to be resolved. These terms will be deemed as

binding on you upon our confirmation of your Booking. If you do not agree to these

terms, you must notify us of such disagreement at the time of your Booking request

and prior to our confirmation of the same.

1. DEFINITIONS

1.1 In these terms unless the context otherwise requires, the following words shall have

the meanings set out opposite them:

“Advertiser” the ender user of the Photographic Works where

the Photographer is engaged to produce

the Photographic Works by an advertising

agency, design firm, or other intermediary.

“Agreement” the Booking, together with these standard terms

and conditions and any other special

conditions agreed in writing between the

parties.

“Booking” an order or request by the Client for the production,

post-production, supply or viewing of

Photographic Works, including (without

limitation) bookings, orders, quotes,

estimates, proposals, and appointments

made for a shoot, sitting or viewing.

“Client” the person or entity listed on the Booking who

engages or instructs the Photographer to

produce the Photographic Works.

“Job-Related Costs” any costs and expenses incurred by the

Photographer on the Client’s behalf in

providing photographic services or in the

creating of the Photographic Works.

“Photographic Works” the deliverable works specified in the Booking 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” the photographer and where the context requires

may include, the studio, Marsters Media

Limited, photographic company, employees

or sub-contractors.

“Price List” the Photographer’s list or schedule of prices for

goods and services at the date of the

Agreement.

Marsters Media Limited, company number 7877999

Last updated: 6 February 2024..

“Services”

2. INSTRUCTIONS IN WRITING

2.1 The Client must ensure that all instructions and expectations regarding the Booking

(and any subsequent variations) are agreed in writing.

3. LICENCE GRANTED TO CLIENT

3.1 Subject to clause 3.2, the Client acknowledges that the Photographer requests the

right to use the Photographic Works for the purposes of:

(a) advertising or otherwise promoting the Photographer’s Work, including

through the use of the Photographer’s website and social media;

(b) 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;

(c) submitting the Photographic Works for display in art galleries; and

(d) using the Photographic Works for any other purpose within the

Photographer’s business activities.

3.2 The Photographer shall not use the Photographic Works for any purpose set out in

clause 3.1 where the Photographer has only been engaged to provide

post-production work and is not the owner of the copyright of the raw materials.

4. CONDITIONS OF LICENCE

4.1 This licence to use, and the right to use, the Photographic Works commences from

the date of full payment of all amounts owed to the Photographer in relation to the

Photographic Works and the Agreement, except where the Photographer gives

express written permission.

5. ASSIGNMENT OF COPYRIGHT

5.1 Where the Agreement specifies that copyright in the Photographic Works is assigned

to the Client in consideration for the Client’s payment for those Works:

(a) the Photographer assigns to the Client copyright in the Photographic Works

from the date of full payment of all amounts owed to the Photographer in

relation to the Photographic Works and the Agreement;

(b) it is the responsibility of the Client to obtain all model releases, moral right

waivers and privacy waivers necessary for the use of the Photographic

Works.

6. DATA PRESERVATION

6.1 The Client’s right to use the Photographic Works under the licence does not include

the right to remove, alter or otherwise affect any rights information accompanying or

relating to the Photographic Works, including (without limitation) any notices or

metadata accompanying or part of the Photographic Works recording creator details,

copyright ownership or publication status of the Photographic Works.

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6.2 The Client shall not alter or remove any notices attached to the Photographic Works

and shall take all reasonable steps to respect and preserve the Photographer’s

copyright and other rights.

6.3 Where the Photographer has placed restrictions on access to or use of the

Photographic Works, the Client shall not defeat (or attempt to defeat) such restriction.

7. STORAGE AND BACKUPS

7.1 The Client acknowledges that the Client is responsible for the storage and backup of

the Photographic Works supplied by the Photographer. While the Photographer will

follow its usual backup procedures upon delivery of the Photographic Works, the

Photographer shall not be liable under any circumstances if unable to produce

backups or future reproductions of the Photographic Works upon the request of the

Client. Where backups are available, these may be made available to the Client for a

fee.

8. PRIVACY AND PERSONAL INFORMATION

8.1 As part of creating the Photographic Works, the Photographer may collect and retain

personal information about the Client. The personal information may be used by the

Photographer for communicating with the Client for any purpose relating the

Photographic Works (including arranging third party services), direct marketing and in

connection with these terms and conditions.

8.2 The Client authorises the Photographer to collect, retain and use personal

information for these purposes (including assessing credit worthiness), and to

disclose that information to any person or entity for these purposes.

8.3 Personal information collected by the Photographer shall be retained in the

Photographer’s database. The Client may access and request correction of any of

the Client’s personal information by contacting the Photographer.

8.4 Where section 105 of the Copyright Act 1994 applies, the Photographer shall obtain

any necessary consent in accordance with section 107 of that Act, provided however

that the Client agrees that the Photographer has the rights described in clause 3.1

unless those rights are expressly excluding in the Booking.

9. PAYMENT

9.1 The Client shall pay the Photographer the amounts payable in accordance with the

Booking and the Agreement.

9.2 If the Photographer’s fee and expenses are not estimated in advance, or for any

goods or services different or additional to the Booking, then the Client shall pay the

amount invoiced by the Photographer in accordance with the Price List.

9.3 The Photographer requires a 50% deposit of the total quoted amounts due in

advance. Any amounts paid in advance are deemed to form part of the fee for the

Services. Deposit payment is required on agreement of Booking.

9.4 Our services will usually attract Goods and Services Tax (“GST”). If this is the case,

GST is payable by you on our fees and charges.

Marsters Media Limited, company number 7877999

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9.5 Unless otherwise specified in the Agreement, payment of all amounts are due by the

20

th of the month immediately following the date of the invoice.

9.6 Any Services completed outside the agreed scope of the Services for which we have

already received payment, will be charged on an hourly rate basis. We will advise

you as soon as reasonably practicable if it becomes necessary for us to provide

services outside of the agreed scope and, if requested, give you an estimate of the

likely amount of the further costs.

10. JOB RELATED COSTS

10.1 The Client shall reimburse the Photographer for all Job-Related Costs. Where the

Photographer makes payment to others on behalf of the Client, the Photographer

may add a service charge or commission, determined at the Photographer’s absolute

discretion. Unless otherwise specified in the Agreement, the Client must pay all

Job-Related Costs and service charges/commissions to the Photographer within 7

days of invoice. The Client is not entitled to any property in:

(a) any artistic works or other materials created or supplied by the Photographer

to support the Photographic Works; or

(b) any materials used for the creating of an artistic work, which are commissions

or arranged by the Photographer; or

(c) any goods used in supporting the Photographic Works.

10.2 Such goods, materials, authored or artistic works shall remain the property of the

Photographer, unless otherwise specified in this Agreement.

11. URGENT WORK

11.1 Where the Client requires 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.

12. CHANGES TO THE ESTIMATE

12.1 Estimates of fees and Job-Related Costs are estimates only and are subject to

alteration. The Photographer 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.

13. OVERDUE PAYMENTS

13.1 In the event that any moneys are not paid in full on the due date, the photographer

shall be entitled to:

(a) charge interest at a rate of 2.5% per month or part month overdue on any

amounts outstanding;

(b) Recover any debt collection costs and related legal expenses (on a

solicitor-client basis); and

Marsters Media Limited, company number 7877999

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(c) suspend any further work until all amounts owing and any costs incurred are

paid in full.

14. CANCELLATION

14.1 When a Booking is confirmed by us to the Client, the Client becomes liable for

payment to the Photographer and the Photographer becomes liable to complete the

shoot.

14.2 If the Client cancels the booking:

(a) within 1 working day of the booked shoot day, the Client must pay a fee of

100% of the Photographer’s 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 of 50% of the

Photographer’s fees.

(c) giving notice of cancellation of greater than 3 working days and within 7

calendar days of the booked shoot day, the Client must pay a fee of 25% of

the Photographer’s fees.

(d) giving notice of cancellation of greater than 7 calendar days of the booked

shoot day, subject to clause 14.4 always, there shall be no fee payable to the

Photographer.

14.3 If the Photographer cancels the booking:

(a) Any and all moneys paid by the client will be refunded within 7 days of the

cancellation.

(b) The Photographer will not be held liable for any loss or damage suffered by

the Client as a result of this, subject to clause 25.1 always.

14.4 In any case, the Client must pay the Photographer for all Job-Related Costs incurred.

The Client acknowledges and agrees that these cancellation fees fairly reflect the

loss suffered by the Photographer and the Photographer’s ability to re-schedule work

and re-allocate resources, depending upon the amount of notice given.

15. POSTPONEMENT

15.1 Subject to any specific terms in the Agreement, if the Client postpones or changes

the day of the Booking, the following shall apply:

(a) Within 1 working day of the booked shoot day, the Client must pay a fee of

50% of the Photographer’s daily fee for each day which is postponed.

(b) Greater than 1 working day and within 3 working days of the booked shoot

day, the Client must pay a fee of 25% of the Photographer’s daily fee for each

day which is postponed.

(c) Greater than 3 working days of the booked shoot, subject to clause 15.1(d)

always, there shall be no fee payable to the Photographer.

Marsters Media Limited, company number 7877999

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(d) The Client must pay the Photographer for all Job-Related Costs incurred.

15.2 The Client acknowledges and agrees that these cancellation fees fairly reflect the

loss suffered by the Photographer and the Photographer’s ability to re-schedule work

and re-allocate resources, depending upon the amount of notice given.

16. WEATHER CONDITIONS

16.1 A weather-permitting booking must be agreed between the Client and Photographer

prior to the shoot. Upon postponement or cancellation of a shoot due to bad weather

the Client must pay the Photographer all Job-Related Costs 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 Client is responsible for taking out weather insurance.

17. WORK SUPSENDED ON CLIENT’S INSTRUCTIONS

17.1 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 the Photographer for all work in

progress and any Job-Related Costs incurred at that time.

18. RESPONSIBILITY FOR CONTRACTORS

18.1 The Client is responsible for making all payments (including rollover fees) and

fulfilling all other obligations to contractors.

18.2 Where contractors are models, the Client 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 Client shall, on a request by the

Photographer, provide evidence of these model releases to the Photographer.

18.3 Where the Client requests the Photographer to engage contractors, the

Photographer shall do so as agent for the Client and the Client indemnifies the

Photographer against all costs, disbursements and other obligations arising from that

agency.

19. CLIENT PROPERTY AND MATERIALS

19.1 Client property and all property and material supplied to the Photographer by or on

behalf of the Client is held at the Client’s risk and the Photographer accepts no

responsibility for the maintenance or insurance of that property or material.

19.2 The Client must pay any sum charged or insured by the Photographer for handling or

storing property or material supplied by or on behalf of the Client.

19.3 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.

20. CLIENT CONFIDENTIALITY

20.1 The Client must advise the Photographer as to whether any material or information

supplied is of a confidential nature. The Photographer will keep that material or

information confidential, except where required by law (as further detailed in our

privacy policy, available on our website and upon request) or disclosure is reasonably

necessary to enable the Photographer to perform the Agreement.

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21. INDEMNITY

21.1 The Client undertakes to indemnify the Photographer 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 Works produced for the Client;

(c) any infringement of an intellectual property right of any person; or

(d) in recovering any moneys due.

21.2 Such loss, claim, damage or expense shall be moneys due for the purposes of these

terms and conditions.

21.3 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.

22. COLOUR VARIATION

22.1 The Client releases the Photographer from any and all liability relating to colour

reproduction of supplied works on any system not under the direct control of the

Photographer. Where the Photographer supplies the Client with photographic prints,

the Client acknowledges that Photographic Works may fade or discolour over time

due to the inherent qualities of materials used, and releases the Photographer from

any liability for any claim based upon fading or discolouration. Where colour is

unable to be reproduced accurately due to limitations in capture and output

technology, the Client releases the Photographer from any and all liability in regard to

colour reproduction.

23. QUALITY OF PHOTOGRAPHIC WORKS

23.1 Where Photographic Works are not of an acceptable technical quality, making it unfit

for the purpose of its specified use, The Photographer has the right to rectify the

defect within a reasonable time, having regard to the urgency of the work. If rectified,

the Photographer 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.

23.2 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 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 (if any) imposed by

any documented agreements on the nature of the intended work.

23.3 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 Client is deemed to have accepted the Photographer’s artistic

interpretation.

23.4 If there is a dispute as to artistic interpretation, which is unresolved after good faith

discussions between the Photographer and the Client, The Photographer and the

Marsters Media Limited, company number 7877999

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Client have the right to agree on having an independent expert to make

determination of the dispute. That decision shall be final and binding.

24. CONSUMER GUARANTEES ACT 1993

24.1 The Consumer Guarantees Act 1993 (“Act”) may apply to the Photographic Works

provided by the Photographer, if the Client acquires those Photographic 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.

24.2 If the Client is acquiring the Photographic Works for business or trade purposes, then

the Client’s rights are subject to the Agreement only and the Act shall not apply.

25. PHOTOGRAPHER NOT LIABLE FOR LOSSES

25.1 Except as provided by the Act, 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 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

misrepresentation of a Client’s verbal instructions.

26. LIABILITY OF MARSTERS MEDIA LIMITED

26.1 Subject to clause 25.1, the Photographer’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 Works or photographic services supplied by the Photographer, shall not

exceed the full value of the payments made by the Client under the Agreement.

27. HEALTH AND SAFETY

27.1 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 the Photographer.

28. FORCE MAJEURE

28.1 Except for an obligation to pay money, neither the Client nor the Photographer shall

be liable for any act, omission or failure to fulfil its obligations, for 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, accidents, electrical, heat, light or

telecommunication failures, interruption to transportation weather or any other cause

outside the Photographer’s control.

29. DISPUTE RESOLUTION

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29.1 The Photographer and the Client agree to use their best efforts to resolve any

dispute which arises though good faith negotiations.

29.2 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.

29.3 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.

30. CONFLICTS

30.1 In the event of a conflict or inconsistency between these terms and conditions and

the Booking, the Booking shall prevail.

31. GOVERNING LAW

31.1 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.

32. ENTIRE AGREEMENT

32.1 The Booking, 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.

32.2 Each Booking, together with these standard terms and conditions and any other

special conditions agreed in writing between the parties, shall constitute a separate

Agreement between the parties.