Terms & Conditions
General Terms and Conditions
1. Definitions
a. “We” or “us ” means the photography business operated by Kerry Hodge Photography Limited, their employees or agents.
b. “You” means the client named on the particulars or any person acting on behalf of and with the authority of the client, or any person purchasing photographs from us.
c. “Work” means all photographs taken by us and any services and advice provided by the us to you in relation to taking and producing the photographs.
d. “Fee” means the cost of the Work as agreed between you and us plus the costs set out in clause 5 below.
e. “Contract” means these terms and conditions plus any other specific instructions that may be agreed to in writing by you and us, including those set out in the Particulars on the front page (“Particulars”).
2. Acceptance
a. Upon signing below, you are bound by this Contract as an agreement between you and us.
b. Despite clause 2 (b), we may by written notice to you alter or replace
this Contract. All Work will be performed under the altered or replaced
Contract, unless agreed otherwise in writing.
3. Our Commitment
a. We will:
i. perform the Work with reasonable skill, care and diligence in a professional manner;
ii. deliver you original work, except to the extent that you require, or request, third party or pre-existing work to be incorporated or used in the Work;
iii. perform the Work on a non-exclusive basis, and we will be free to perform the same
or similar work for others without restriction;
iv. endeavour to ensure the Work is performed in accordance with your instructions, subject to our creative judgment.
4. Your Commitment
a. You must give all reasonable assistance to enable us to perform the Work by:
i. giving clear instructions, including specifying who persons and/or scenes to be photographed;
ii. providing information to us in a timely manner;
iii. setting aside sufficient time in order for the photographs to be taken as directed by us.
iv. We will not be responsible for photographs not taken as a result of your failure to provide such reasonable assistance.
b. Unless otherwise agreed with us, you must pay the deposit specified in
the Particulars when you sign it (“Deposit”) and you must pay for the
Work in full and in cleared funds within 7 days of receiving the final imagery.
c. Upon payment of the Deposit, we will reserve the time and date of the session set out in the Particulars and we will not make other reservations for that time and date. For this reason, the Deposit may not be refundable. If you change the time and date and we are available, the Deposit will be applied to the new time and date. However, if we
are unavailable, or if you cancel, we reserve the right to not refund the Deposit.
d. You accept that photography by its nature is an art and that you have chosen us
because of our particular style. You will grant us the right to exercise our creative judgment in the interest of producing images in keeping with that style. You understand that you may not demand a refund of the Deposit, or that the Work to be done again for free, due to artistic differences with us over the final images.
5. Invoicing and Fees
a. We will invoice you for the fee specified in the Particulars or quote that we have agreed with you plus:
i. any other fees for work that is performed in addition, or as a change, to the initial instructions in the Particulars; and
ii. any expenses or costs we incur on your behalf or which are necessary to carry out the Work (such as travel and parking).
b. We may invoice you (at our discretion) on completion of the Work, or on a monthly basis, or at other intervals, as the Work progresses.
6. Quotes and Delivery
a. Where a quote is given by us for Work:
i. the quote will be valid for thirty (30) days from the date of issue; and
ii. the quote will be exclusive of any taxes unless specifically stated to the contrary.
b. Where Work is required in addition to the Particulars or a quote, you agree to pay for the additional fee of such work.
c. We will use our reasonable endeavours to provide you a sample of up to 10 images electronically within 5 working days of the session. The remainder of the images will be provided to you in the manner set out in the Particulars upon payment of the Fees in full.
7. Outstanding Fees
a. If you do not pay any amounts payable to us when due you will be in default and we may, without limiting any other rights or remedies:
i. charge interest on any amount owing after the due date for payment at the rate of 5% per month or part month; and
ii. charge any expenses, disbursements and legal costs incurred by us in the enforcement of any rights contained in this Contract shall be paid by you, including any reasonable solicitor’s fees or debt collection agency fees;
iii. stop performing the Work;iv. require you to pay all outstanding Fees and to stop using any of the Work provided by us until all Fees are paid.
8. Cancellation
a. We may, without liability to you, cancel this Contract at any time upon notice to you if you:
i. fail to pay the Fees by the due date for payment;
ii. stop carrying on business;
iii. become insolvent, have a receiver appointed over some or all of your property, or a resolution is passed for your liquidation.
9. Ownership and Use
a. We are and will remain the exclusive owner everywhere in the world of all intellectual property rights and interests (including copyright and all other statutory and common law rights and interests) in the Work as first owner of those intellectual property rights and interests.
b. We shall retain exclusive worldwide ownership at all times of our artistic styles, methods of working, techniques, general creative ideas and skills.
c. We assert our right to be identified as the creator of all Work created by us for you
and we do not waive any of our moral rights in any Work created for you, and without limitation, you must not attribute the Work to anyone other than us.
d. Upon payment of all money you owe to us in accordance with this Contract, we grant you
unlimited but non-exclusive licence to use or reproduce the photographs for which you pay but you must not alter, modify or adapt in any way our Work without our express written consent.
e. You agree that we may use the Work and your name and identity as part of our portfolio of works for the purposes of promoting and advertising the our business.
10. Liability
a. Except as provided for by the Consumer Guarantees Act 1993 we will not be liable for:
i. any loss or damage arising by reason of any delay or failure to perform our
obligations under this Contract if the cause of the delay or failure is beyond our control.;
ii. any loss of profits;
iii. any indirect or consequential loss of whatever nature; or
iv. any loss resulting from any errors or omissions arising from an oversight or a
misinterpretation of your verbal instructions arising directly or indirectly from any
breach by us of any of its obligations under the Particulars or from any cancellation or from any negligence on our part.
b. You will indemnify us against all claims and loss of any kind whatsoever whether caused or arising as a result of our negligence or otherwise, brought by any person in connection with any matter, act, omission, or error by us in connection with the Work.c. If we are
unavailable due to illness or bereavement, we will use our reasonable endeavours to
re-schedule the session and if that is not possible, we may refund the Deposit.
d. We will use our reasonable endeavours to prevent images being lost or damaged due technical problems (such as camera malfunction). If images are lost or damaged, we will use our reasonable endeavours to retrieve them but if, at our sole discretion, it is not reasonable in the circumstances to retrieve them, we will agree with you to either re-shoot the photographs or refund the Deposit.
e. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where you acquire Work from us for the purposes of a business in terms of that Act.
11. Collection and Use of Personal Information
a. You authorise us to collect, retain and use any information about you for the purposes of the Privacy Act 1993 (if applicable) and of assessing your credit worthiness and enforcing any rights under this Contract. You authorise us to disclose any information obtained to any
person for the purposes set out in this clause.
12. Disputes
a. The parties shall meet and discuss in good faith any dispute between them arising out of this Contract. If the discussions fail to resolve the relevant dispute within a period of 10 working days, either party may (by written notice to the other party) require that the dispute be submitted for mediation. However, nothing in this clause prevents either party from taking immediate steps to seek equitable relief before an appropriate Court.
13. Miscellaneous.
-Photographs taken during the course of a booking will be at our discretion although every effort will be made to comply with your requirements.
- We will endeavour to photograph all individuals as requested by you at some
point during the session, but no responsibility will be taken by us in the event of leaving somebody out. We cannot guarantee specific shots, particularly when operating in an environment that is not controlled.
- Due to a variety of lighting conditions and the limitations of professional film or digital capture, some colours may alter slightly throughout a set of photographs. Please note that certain colours do not reproduce exactly on photographic film or paper. It is understood that all photographic printing is undertaken within the technical limitations of the
process and that colour may not necessarily be facsimile over the whole range of colours within a subject. It is also understood that prints made at different times or in different sizes may be variable in colour balance.
- All print and presentation sizes quoted are approximate and subject to our discretion.
Although all equipment is checked regularly The Photographer(s) will not be responsible for
photographs that are not produced due to technical failure, either at the shooting or processing stage.
- In the unlikely event of any complaint with regards to our service, all complaints must be received in writing within seven days of collection of products purchased. This includes photographs, albums and frames.
- In the event of cancellation by us (although all attempts will be made to arrange for another photographer to be present) or in the unlikely event of total photographic failure (although re-shoots may be arranged if practicable – we will not be responsible for costs in order to stage such re-shoots), Our liability shall be limited to a full refund of any deposits and fees paid. All arbitration must be held in a local jurisdiction to the photographer in case of a dispute.
- In the event of inappropriate or aggressive behaviour from a client or guest of the clients toward the photographer, it is within the photographers rights to advise the client of the behaviour in question, and then if behaviour persists the photographer can choose to refuse to continue the contract effective immediately. It is at the photographers discretion whether or not a partial or full refund occurs.
14. Negatives or Digital Files
a. The negatives and digital files shall remain the property of us and shall be kept by them for not less than 12 months from the contract date.
b. Should negatives or digital files be lost, damaged or destroyed for reasons beyond control our liability shall be limited to a full refund of any deposits and fees
paid, but shall not include a refund for any goods already received.
c. All orders should be placed with us before the end of the 12 month period starting at the contract date. We will not be liable for failure to produce any orders placed after this time.
You are hereby advised to take out an insurance policy to cover any expenses in the event of cancellation.
15. General
a. Failure by us to enforce any of this Contract will not be deemed to be a waiver of our rights or obligations under them.
b. If any provision of this Contract is invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
c. This Contract is governed by the laws of New Zealand, and the parties
submit to the jurisdiction of the Courts of New Zealand.