1. Definitions
1.1 “Seller” means Vintographs Limited, its successors and assigns or any person acting on behalf of and with the authority of Vintographs Limited.
1.2 “Client” means the person/s requesting the Seller to provide the Services as specified in any invoice, document or order, and if there is more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Photographic Works” means all photographic prints, transparencies, negatives and digital images created by the Seller.
1.4 “Services” means all Services supplied by the Seller to the Client at the Client’s request from time to time.
1.5 “Prohibited Content” means any content that contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful.
1.6 “Price” means the price payable (plus any Goods and Services Tax (GST) where applicable) for the Services as agreed between the Seller and the Client in accordance with clause 5 of this contract.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Seller.
2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Seller.
2.3 The Seller reserves the right not to supply any Services, or refuse the acceptance of any instructions, at any time for any reason (including where such, in the Seller’s opinion is or may be unlawful, offensive, contains Prohibited Content, or is otherwise inappropriate), and the Seller shall not be liable to the Client for any such action.
2.4 Any advice, recommendation, information, assistance or service provided by the Seller in relation to Services is given in good faith, is based on the Seller’s own knowledge and experience and shall be accepted without liability on the part of the Seller and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services.
3. Electronic Transactions Act 2002
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At the Seller’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Seller to the Client; or
(b) the Price as at the date of delivery of the Services according to the Seller’s current price list; or
(c) the Seller’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Variations will be charged for on the basis of the Seller’s quotation, and will be detailed in writing, and shown as variations on the Seller’s invoice. The Client shall be required to respond to any variation submitted by the Seller within ten (10) working days. Failure to do so will entitle the Seller to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At the Seller’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Seller, which may be:
(a) on delivery of the Services;
(b) before delivery of the Services;
(c) by way of instalments/progress payments in accordance with the Seller’s payment schedule;
(d) payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Seller.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and the Seller.
5.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for providing the Seller’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Provision of Services
6.1 At the Seller’s sole discretion delivery of the Services shall take place when:
(a) the Services are supplied to the Client at the Seller’s address; or
(b) the Services are supplied to the Client at the Client’s nominated address.
6.2 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
6.3 The Seller may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
6.4 Any time specified by the Seller for delivery of the Services is an estimate only and the Seller will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that the Seller is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Seller shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
7. Risk
7.1 Irrespective of whether the Seller retains ownership of any Photographic Works all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as the Seller may repossess the Photographic Works. The Client must insure all Photographic Works on or before delivery.
7.2 The Seller reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Photographic Works as a result of the Client’s failure to insure in accordance with clause 6.1.
7.3 When quotations are based on the Client’s specific requirements or where proofs are required, any extra work or cost caused by such requirements and/or any variation by the Client of their original instructions may be charged to the Client and shown as extra on the invoice in accordance with clause 5.2.
7.4 The Seller may perform limited professional image manipulation on any image(s) selected for presentation to the Client such as red eye removal, blemish removal, exposure compensation, removal of people and/or objects, colour correction, special or colour effects, etc., as the Seller deems necessary and appropriate. Further image manipulation, if requested, is limited to two (2) hours total work time regardless of the numbers of images requested to manipulate. After this time elapses a fee for extra service will be charged (in accordance with clause 5.2) as agreed to by the Client. The Client understands that the photographer may not be able to execute all professional image manipulations requested but will attempt to do so to the fullest extent possible.
7.5 All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
7.6 Photographic Works made to special order or made to the Client’s specifications are under no circumstances acceptable for credit or return. Cancellation of orders for printed, special order or made to the Client’s specifications will definitely not be accepted, once these orders are in production.
7.7 All Photographic Works furnished or manipulated by the Seller and negatives or positives, made from the Seller’s original photos, or from a photo furnished by the Client, remain the exclusive property of the Seller unless otherwise agreed upon in writing.
7.8 Photo samples, USBs, disks, artwork and film supplied by the Client and/or other authorised persons remain the property of the Client. Unless otherwise indicated in writing the Seller shall assume these photo samples, USBs, disks, artwork and film to be duplicate copies of the original.
7.9 Where the Seller has designed, or created photos and/or prints for the Client then the Client undertakes to acknowledge the Sellers work in the event that the designs, prints or images are utilised in advertising or marketing material by the Client.
7.10 Once accepted by the Client, the Seller’s written quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, the Seller shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
7.11 In the case of property and materials left with the Seller without specific instructions, the Seller shall be free to dispose of them at the end of twelve (12) months after receiving them and to accept and retain any proceeds gained from such disposal to cover the Seller’s costs in holding and handling such items.
7.12 The Client acknowledges that Photographic Works may fade or discolour over time due to the inherent qualities of materials used. The Client releases the Seller from any liability for any claim based upon fading or discolouration. The Client also acknowledges that digital images may vary from the colours experienced by the human eye and that the Seller may not be able to reproduce those colours in the edited digital images presented.
7.13 In accordance with the Clients instructions and expectations the Seller will give a reasonable attempt to obtain coverage of the event. However, the Client acknowledges that the Seller may not obtain all coverage instructed or expected by the Client due to the nature of events and photography.
8. Title
8.1 The Seller and the Client agree that where it is intended that the ownership of Photographic Works is to pass to the Client that such ownership shall not pass until:
(a) the Client has paid the Seller all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client.
8.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Photographic Works shall continue.
8.3 It is further agreed that:
(a) the Client is only a bailee of the Photographic Works and must return the Photographic Works to the Seller immediately upon request by the Seller;
(b) the Client holds the benefit of the Client’s insurance of the Photographic Works on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Photographic Works being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Photographic Works. If the Client sells, disposes or parts with possession of the Photographic Works then the Client must hold the proceeds of sale of the Photographic Works on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
(d) the Client should not convert or process the Photographic Works or intermix them with other goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of the Seller and must dispose of or return the resulting product to the Seller as the Seller so directs.
(e) the Client shall not charge or grant an encumbrance over the Photographic Works nor grant nor otherwise give away any interest in the Photographic Works while they remain the property of the Seller;
(f) the Client irrevocably authorises the Seller to enter any premises where the Seller believes the Photographic Works are kept and recover possession of the Photographic Works.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Photographic Works and/or collateral (account) – being a monetary obligation of the Client to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Client.
9.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Photographic Works charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Photographic Works and/or collateral (account) in favour of a third party without the prior written consent of the Seller.
9.3 The Seller and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by the Seller, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
9.6 The Client shall unconditionally ratify any actions taken by the Seller under clauses 9.1 to 9.5.
10. Security and Charge
10.1 In consideration of the Seller agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
10.3 The Client irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11. Client’s Disclaimer
11.1 The Client hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Seller and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.
12. Error and Omissions
12.1 The Client shall inspect the Services on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Seller an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
12.2 For defective Services, which the Seller has agreed in writing that the Client is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 12.1.
13. Consumer Guarantees Act 1993
13.1 If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services by the Seller to the Client.
14. Intellectual Property and Licence to Use
14.1 The copyright in all Photographic Works resulting from the booking or order remains the property of the Seller.
14.2 All copyright that arises out of the performance of the Seller’s obligations under this contract shall arise not by commission but shall be the creation of the Seller. The Seller shall remain the first owner of the Photographic Works and the Client shall be supplied with the Photographic Works for use on the basis of the terms of this licence.
14.3 The Client shall have the right to seek further licences for reuse of a copyright at the Sellers normal prices at the time of the request.
14.4 The Client warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
14.5 The Seller does not accept commissions to create Photographic Works. The Seller and the Client have agreed by these standard terms to override section 21(3) of the Copyright Act 1994.
14.6 The Seller grants the Client a non–exclusive licence to use those parts of the Photographic Works selected by the Seller and presented to the Client, however this licence does not include the right to copy, reproduce or publish the Photographic Works or any part of the Photographic Works.
14.7 The Client may license any or all of the Photographic Works from the Seller’s selection.
14.8 The Client acknowledges that the purpose of the creation of the Photographic Works includes the right of the Seller to:
(a) enter 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
(b) advertise or otherwise promote the Photographer’s Works; and
(c) submit the Photographic Works for display at art galleries or other premises; and
(d) use the Photographic Works for any other purpose within the Seller’s business activities.
14.9 This licence to use, and the right to use, the Photographic Works comes into effect from the date of full payment of the Services, except where the Seller gives express written permission.
15. Default and Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Client owes the Seller any money the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
15.3 Further to any other rights or remedies the Seller may have under this contract, if a Client has made payment to the Seller, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Seller under this clause 15, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
15.4 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Services to the Client. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
15.5 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Seller;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16. Cancellation
16.1 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Services to the Client. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
16.2 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any money paid by the Client for the Services. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.3 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
17. Privacy Act 1993
17.1 The Client authorises the Seller or the Seller’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by the Seller from the Client directly or obtained by the Seller from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
17.2 Where the Client is an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Client shall have the right to request the Seller for a copy of the information about the Client retained by the Seller and the right to request the Seller to correct any incorrect information about the Client held by the Seller.
18. Service of Notices
18.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
18.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
19. General
19.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
19.3 The Seller shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
19.4 Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.
19.5 The Client agrees that the Seller may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Seller to provide Services to the Client.
19.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.7 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.