Creative Work Terms & Conditions
These Terms of Service apply to all our photography and videography services. We may, at our discretion, update or revise the Terms of Service by adding, changing or removing terms at any time. Any changes will take effect immediately from the time it is published at clarkeandclarke.co.nz/terms-of-service (or any successor URL), so we encourage you to periodically review the Terms from time to time.
1. INSTRUCTIONS MUST BE IN WRITING
The Client must ensure that all their instructions and expectations (or variations of such) regarding the Booking or Order are agreed in writing.
2. LICENCE GRANTED TO CLIENT
The copyright in all Photographic/Videographic Works resulting from the Booking or Order remains the property of Clarke & Clarke Group Limited. Clarke & Clarke Group Limited does not accept commissions to create Photographic/Videographic Works. Clarke & Clarke Group Limited and the Client have agreed by these standard terms to override section 21(3) of the Copyright Act 1994. Clarke & Clarke Group Limited grants the Client a non-exclusive Licence to use those parts of the Photographic/Videographic Works selected by Clarke & Clarke Group Limited and presented to the Client, however this Licence does not include the right to copy, reproduce or publish the Photographic/Videographic Works or any part of the Photographic/Videographic Works. The Client may license any or all of the Photographic/Videographic Works from Clarke & Clarke Group Limited’s selection. The Client acknowledges that the purpose of the creation of the Photographic/Videographic Works includes the right of Clarke & Clarke Group Limited to: (a) Enter the Photographic/Videographic Works into photography/videography 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 Clarke & Clarke Group Limited’s Work; and (c) Submit the Photographic/Videographic Works for display at art galleries or other premises; and (d) Use the Photographic/Videographic Works for any other purpose within Clarke & Clarke Group Limited’s business activities.
3. CONDITIONS OF LICENCE
This Licence to use, and the right to use, the Photographic/Videographic Works is subject to a licencing agreement provided by Clarke & Clarke Group Limited.
4. COPYRIGHT IN THE WORKS
All copyright that arises out of the performance of Clarke & Clarke Group Limited’s obligations under this contract shall arise not by commission but shall be the creation of Clarke & Clarke Group Limited. Clarke & Clarke Group Limited shall remain the first owner of the Photographic/Videographic Works and the Client shall be supplied with the Photographic/Videographic Works for use on the basis of the terms of this Licence. The Client shall have the right to seek further licences for reuse of any copyright at Clarke & Clarke Group Limited’s normal prices at the time of the request.
5. MORAL RIGHTS
Clarke & Clarke Group Limited asserts his or her moral rights in respect of the Photographic/Videographic Works and any reference to the Photographic/Videographic Works shall be accompanied by full attribution to Clarke & Clarke Group Limited in a form to be approved by Clarke & Clarke Group Limited.
6. PRIVACY AND PERSONAL INFORMATION
Clarke & Clarke Group Limited shall abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection.
7. PAYMENT
The Client shall pay Clarke & Clarke Group Limited the various amounts payable in accordance with the Booking and/or Order agreement(s).
8. 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.
9. INDEMNITY
The Client undertakes to indemnify Clarke & Clarke Group Limited 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 recovering any moneys due and such loss, damage or expense shall be moneys due for the purposes of these terms and conditions.
10. CANCELLATION OR POSTPONEMENT OF BOOKING
Where the Client cancels or postpones a Booking appointment , the Client must pay, at the Photographer's/ Videographer's discretion, the amounts that have already been invoiced or are due as outlined on the Booking agreement , regardless of whether the appointment is attended or not . 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 . The Booking appointment and any fees paid prior to cancellation or postponement of the appointment are transferable to another person, as if it were the original person, as long as the Booking is similar and the date and time of the appointment are not changed.
11. CLIENT CONFIDENTIALITY
The Client must advise Clarke & Clarke Group Limited as to whether any material or information communicated to him/her is of a confidential nature. Clarke & Clarke Group Limited will keep confidential material or information communicated to him/her in confidence for the purposes of the photography, except where it is reasonably necessary to enable Clarke & Clarke Group Limited to carry out his/her obligations in relation to the Booking or Order.
12. INDEMNITY FOR BREACHES OF INTELLECTUAL PROPERTY
The Client shall fully indemnify Clarke & Clarke Group Limited in respect of any claims, costs, or expenses arising out of any illegal or defamatory Photographic/Videographic Works produced for the Client or any infringement of an intellectual property right of any person.
13. COLOUR VARIATION
The Client acknowledges that Photographic/Videographic Works may fade or discolour over time due to the inherent qualities of materials used. The Client releases Clarke & Clarke Group Limited from any liability for any claim based upon fading or discolouration.
14. IMPORTANT NOTICE – CONSUMER GUARANTEES ACT 1993
The Consumer Guarantees Act 1993 may apply to the licensed Photographic/Videographic Works provided by Clarke & Clarke Group Limited if the Client acquires those licensed Photographic/Videographic 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/Videographic 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. In this case the Photographer may grant a separate licence under the Standard Terms for Commercial Photography.
15. CLARKE & CLARKE GROUP LIMITED NOT LIABLE FOR LOSSES
Except as provided for by the Consumer Guarantees Act 1993 Clarke & Clarke Group Limited shall not be liable for : (a) Any loss or damage arising by reason of any delay in the completion of the Photographic/Videographic 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 Clarke & Clarke Group Limited of any of its obligations under the Booking or Order or from any cancellation of the Booking or Order or from any negligence on the part of Clarke & Clarke Group Limited.
16. LIABILITY OF CLARKE & CLARKE GROUP LIMITED
Clarke & Clarke Group Limited’s liability to the Client for any and all costs, loss or damage suffered by the Client, however caused, arising out of or connected with the performance or failure of performance of photographic/videographic services by Clarke & Clarke Group Limited, except where provided to the contrary by the Consumer Guarantees Act, shall not exceed the full value of the payments made by the Client under the Booking and/or Order agreements.
17. ORDER MAY BE TERMINATED ON NOTICE
Effective termination of the Order by the Client must be in writing and give reasonable notice to Clarke & Clarke Group Limited. The Client must compensate Clarke & Clarke Group Limited for all amounts due in accordance with the Order Agreement (including the proportion of the Order that has been completed at the date of termination). Upon receipt of such notice from the Client , Clarke & Clarke Group Limited must take immediate steps to bring the photographic/videographic services to a close.
18. FORCE MAJEURE
Neither the Client nor Clarke & Clarke Group Limited shall be liable for any loss or damage arising directly or indirectly due to an act of weather, fire, armed conflict, labour disputes, civil commotion, intervention of a government, accidents, interruption to transportation, weather or any other cause outside the Photographers/Videographers control.
19. ARTISTIC STYLE
The Client acknowledges their familiarity with Clarke & Clarke Group Limited’s portfolio and is requesting services with knowledge of their artistic style; that Clarke & Clarke Group Limited’s work is constantly evolving; that Clarke & Clarke Group Limited’s services are of unique and artistic nature; that the photos/moving images may be different from photographs/moving images taken by Clarke & Clarke Group Limited in the past; and that in creating the photos/moving images Clarke & Clarke Group Limited will use their personal artistic judgment to create images consistent with their personal vision of the Event, which vision may be different from the Client’s and/or the Subject’s vision of the Event. The Client relinquishes all artistic control to Clarke & Clarke Group Limited and accepts their decisions in regards to depth of field, exposure, colour correction, tilt or any other aspect of the Photographic/Videographic Works created during the Assignment. Accordingly, the Client acknowledges that the photos/moving images will not be subject to rejection on the basis of taste or aesthetic criteria. Client requested edits to images (including blemish removal, bodily enhancements, or any other client requests) are subject to a fee. Changes to moving images edits (above 1 round of changes) are subject to a fee.
20. CLIENT COOPERATION
Clarke & Clarke Group Limited cannot perform the Assignment without the cooperation of the Client. In the event that Clarke & Clarke Group Limited is unable to deliver a portion of the Photographic/Videographic Works, or other goods, required under this Agreement , due to a failure of the Client to cooperate or to provide necessary approvals regarding the Photographic/Videographic Works, or other goods, to Clarke & Clarke Group Limited, then Clarke & Clarke Group Limited shall not be obligated to deliver that portion of the Photographic/Videographic Works or other goods to the Client.
21. UNEDITED WORK
Clarke & Clarke Group Limited will not deliver any raw photographs or footage to the client . Only the final, edited product will be delivered to the Client at Clarke & Clarke Group Limited’s discretion. Photos will be edited at Clarke & Clarke Group Limited’s discretion and final delivery will not include every photo/moving image frame taken.
22. ADDITIONAL HOURS
Unless otherwise agreed in writing before the day agreed, additional hours of coverage beyond the hours agreed in the Booking Agreement will be charged at $200 per additional hour of coverage provided. Additional editing is charged at $120 per additional hour of editing requested. The Client must pay for any additional hours of coverage provided before Clarke & Clarke Group Limited will provide the Photographic/Videographic Works or other products to the Client.
Definition of terms used in this document:
Photographic/Videographic Works: Includes photographic/videographic digital files, still and moving images created by Clarke & Clarke Group Limited.
Photographer/Videographer: Means Clarke & Clarke Group Limited providing the services under this Booking or Order agreement and where the context requires may include, the studio, photographic/videographic company, employees or sub-contractors.
Client: Means the client listed who has excepted the estimate.
Order: Includes an order placed by the Client for the production of Photographic/Videographic Works, an invoice or statement.
Licence: Is a right granted by Clarke & Clarke Group Limited to the Client to use the copyright works of Clarke & Clarke Group Limited on the terms set out above.
