THE NITTY GRITTY DETAILS

 

Want to know how our partnership works? Here are the full terms of the contract you will sign with us if you want to join. Got questions about the legal stuff? Don't be shy, contact us.


BACKGROUND

The Photographer is a professional photographer who creates and owns stock photographs.  The Photographer wishes to supply his or her stock photographs to the Agency for marketing and licensing to third parties.  The Agency has agreed to represent the work of the Photographer on the terms of this Agreement.

 

Click on each title to open the corresponding information
0. DEFINITIONS
Accepted Images

means Images submitted by the Photographer to the Agency and accepted by the Agency on the terms of this Agreement.

 

Agency’s Policies

the Agency’s policies relating to the terms of this Agreement, as issued and updated by the Agency from time to time and including without limitation, the Agency’s sensitive image use and similar image policies.

 

Digital Files

means digital files of Images captured by a digital camera.

 

Exclusivity

Fully Exclusive
The Photographer works solely with the Agency and does not place stock images with any other agency for representation. The Agency has the exclusive right to represent all stock images created by the Photographer.

Partly Exclusive
The Photographer works with more than one agency but does not place the same nor similar images with any other agency. The Agency has the exclusive right to represent Accepted Images created by the Photographer.

Non Exclusive
The Photographer works with more than one agency and places the same and similar images with the Agency and one or more other agencies. The Agency has no exclusive right to represent the images of the Photographer.

Licensing Fees

means fees received by the Agency from licensing the right to use the Accepted Images to third parties.

 

Model Release means a complete, unequivocal and irrevocable release of liability signed by any person appearing in an Image, in a form approved by the Agency.

 

Net Billings

means the Licensing Fees, less:


(a) bank fees and taxes necessarily and directly incurred by the Agency in completing the relevant
licence(s);
(b) bad debts in respect of Licensing Fees; and
(c) the reasonable cost of currency conversions and commissions payable by the Agency to credit card
companies on Licensing Fees received by credit card payments.
(d) sub-agent commissions where Accepted Photographs are licensed in a territory where the Agency
has contractually appointed a sub-agent.

 

Images

means the Photographer’s Images  (and includes Digital Files and Similars).

 

Property Release

means a complete, unequivocal and irrevocable release of liability signed by any person owning or having
rights to any property appearing in an Image, in a form approved by the Agency.

 

Similars

means Images of the same subject taken in the same or similar manner, as determined by the Agency in accordance with the Agency’s Policies.

 

Submission Guidelines

means the Agency’s submissions guidelines, for the submission of Images to the Agency, as updated by the Agency from time to time.

 

1. SCOPE OF THIS AGREEMENT
During the term of this Agreement:

(a)        the Photographer will submit Images to the Agency; and

(b)        the Agency may accept or reject the Images.

All Images accepted by the Agency, being Accepted Images, will be accepted on the terms of this Agreement.
2. SCOPE OF AGENCY

(a)        the Photographer grants the Agency the right to market, distribute and license rights to use Accepted Images worldwide, to any persons and in any manner.

(b)       The Agency will use its best efforts to market, distribute and license Accepted Images  on behalf of the Photographer, to maximise the Licensing Fees.

(d)        The Agency may appoint sub-agents in specific territories to market, distribute and license non-exclusive rights to use Accepted Images.

 

3. SUBMISSIONS AND CAPTIONS

The Photographer will:

(a)        supply Images in the format prescribed in the Submission Guidelines; and

(b)        provide complete and accurate captions with the Accepted Images in the form and with the content prescribed in the Submission Guidelines and/or the Policies.

 

4. RESTRICTIONS

The Photographer may place reasonable restrictions on the Agency’s use of the Accepted Images.  To do so, the Photographer must provide written notice to the Agency at the time Images are submitted to the Agency.  Such restrictions may be specific to certain Accepted Images or a general restriction applying to all Accepted Images subsequently submitted by the Photographer.  The Agency may decline to accept Images submitted by the Photographer with restrictions.

 

5. REPORTING
During the term of this Agreement, the Agency will report to the Photographer every month. The Agency’s report will:

(a)        be supplied by the last day of the month following the close of the relevant calendar month being reported; and

(b)        provide details of the Accepted Images licensed, the Licensing Fees received by the Agency, any reductions in the Licensing Fees (resulting in the Net Billings), the commissions due to the Photographer and any income tax deductions or GST additions.

Where no commission payment is due to the Photographer for a particular calendar month, the Agency shall be under no obligation to supply a report to the Photographer for that period
6. PAYMENTS

(a)        The Agency will pay the Photographer a commission, being a percentage of the Net Billings received by the Agency during the previous calendar month from licensing the Accepted Images. Such percentage is determined by the level of exclusivity offered by the photographer to the Agency as follows:
 

(i)   Fully Exclusive (40%)
(ii)  Partly Exclusive (35%)
(iii) Non Exclusive (30%)
 

(b)        The Agency will make all payments due to the Photographer on the last day of the month following the close of the relevant calendar month being reported, subject to the Agency’s receipt of a GST invoice in respect of the Net Billings payable (or, at the discretion of the Agency, the Agency’s issue of a buyer-created tax invoice, as approved by the New Zealand Inland Revenue Department).

(c)        If the Agency refunds any Licensing Fees paid by clients of the Agency, the Agency may set-off and deduct any commissions previously paid to the Photographer (on account of the refunded Licensing Fees) against future commissions payable to the Photographer.

(d)        The Agency may deduct and set-off any sum due to the Photographer on account of any claim made against the Agency for which the Photographer is liable in terms of this Agreement.

7. ACKNOWLEDGMENTS

(a)        If the Agreement is:
 

(i)  Fully Exclusive
The Photographer may not license any images (including, for the avoidance of doubt, all Similars of the Accepted Images) either directly or via another photo library,

(ii) Partly Exclusive
The Photographer may not license any Accepted Images (including, for the avoidance of doubt, all Similars of the Accepted Images) either directly or via another photo library,

(iii) Non Exclusive
The Photographer may license any Images (including, for the avoidance of doubt, all Similars of the Accepted Images) either directly or via another photo library,
 

(b)        The photographer consents to the Agency’s use without charge of the Accepted Images in brochures, advertisements, internet websites, joint ventures and other promotions of the Agency reasonably designed to enhance the marketing of the Accepted Images, and

(c)        consents to the use of his or her name, portrait, picture or image in connection with the promotion and advertising of the Accepted Images, provided such use is dignified and consistent with the Photographer’s reputation.

 

8. MODEL AND PROPERTY RELEASES / AGENCY'S POLICIES
(a)        When supplying Images to the Agency, the Photographer shall indicate which Images have Model Releases and/or Property Releases and shall provide copies of such Model Releases and Property Releases to the Agency in a format acceptable to the Agency.

(b)        The Agency may decline to accept Images which are not supplied with Agency approved model and/or property releases.

(c)        The Photographer acknowledges that by providing Model Releases and Property Releases to the Agency in the form required by the Agency, the Agency assumes no liability for, nor provides any warranty or representation in relation to, the adequacy or otherwise of the Model Releases and the Property Releases.  Further, the Photographer remains entirely responsible for any claim that any person may make as a consequence of their image or property appearing in any Accepted Images.

(d)        The Photographer is entirely responsible for any representation made to any person whose image or property appears in any Accepted Image.

(e)        The Photographer confirms that, to the extent applicable, the Photographer will comply with all of the Agency’s Policies (which will be construed as forming part of this Agreement), as advised by the Agency from time to time.  The Agency will be responsible for determining whether the Photographer is complying with the Agency’s Policies.

(f)         When licensing Images in which people appear, the Agency adopts a Sensitive Image Use Policy, being one of the Agency’s Policies.  The Agency makes no representation or warranty about its own or any other person’s compliance with such policy.
9. WARRANTIES AND REPRESENTATIONS
(a)        Copyright in the Images remains the property of the Photographer.

(b)        The Photographer warrants and represents that he/she is the sole creator and owner of the Images.

(c)         The Photographer warrants and represents that he/she is authorised to enter into this Agreement.

(d)        The Photographer warrants that the Images do not infringe the copyright, rights of privacy or property rights of any third party and that there are no third party claims in relation to the Images.

(e)        The Photographer shall place a copyright notice to be displayed in the IPTC/File Information for all Accepted Images.

(f)         If this Agreement is Fully Exclusive or Partly Exclusive, The Photographer warrants that he/she has not, prior to the date of this Agreement, sold or licensed (either directly or via another photo library) the right to use any Images (including any Similars) to any person that may, pursuant to this Agreement, be submitted to the Agency and become Accepted Images (or Similars of Accepted Images) without the prior written acknowledgement by the Agency.
10. REASONABLE CARE
(a)        While the Agency will exercise reasonable care in licensing third parties the right to use the Accepted Images, the Photographer acknowledges that the Agency has no obligations, express or implied, beyond the terms of this Agreement.
11. TERM
(a)        The term of this Agreement is 3 years.  At the end of such term of 3 years and unless renewed in accordance with this clause 11, this Agreement shall continue until one party gives 28 days written notice to the other that this Agreement is to terminate.

(b)        At least sixty (60) days prior to the end of the initial or any subsequent term, the Agency may notify the Photographer that it wishes to renew this Agreement for a further term of 3 years.  

(c)        If the Photographer does not reject notification by the Agency that it wishes to renew the term (which it may do by notice in writing to the Agency prior to the end of then current term), this Agreement will be renewed for such additional term on the same terms and conditions of this Agreement.
12. INDEMNITY AND LIABILITY
(a)        Subject to subclauses (c) and (d) below, the Photographer shall indemnify the Agency from and against all losses, damages, costs, actions, proceedings, claims and demands which the Agency may incur, or be subject to, arising directly or indirectly as a consequence of any breach by the Photographer of its obligations under this Agreement (including without limitation, the Photographer’s obligations in relation to any person whose image or property appears in any Accepted Image).

(b)        Without limiting the provisions of subclause (a) above, the indemnity by the Photographer will extend to include any claim made against the Agency by any person (including without limitation, any person whose image or property appears in any Accepted Image, in circumstances where the Photographer supplied the Agency with Model Releases and/or Property Releases in connection with the Accepted Images in which such personal or property images appear).

(c)        The Photographer shall have no obligation to indemnify the Agency with respect to materials inserted in Accepted Images or alterations made to Accepted Images, after the Accepted Images are accepted by the Agency, by a party other than the Photographer.

(d)        The Photographer shall have no obligation to indemnify the Agency (in connection with a claim by any person whose image or property appears in any Accepted Image) if the Agency supplies Accepted Images to a client in circumstances where the Agency knows that Model Releases and/or Property Releases should have been, but were not, obtained by the Photographer.
13. TERMINATION BY THE PHOTOGRAPHER
The Photographer may terminate this Agreement by written notice to the Agency if:

(a)        the Agency fails to report to the Photographer pursuant to clause 5;

(b)        the Agency fails to make payments pursuant to clause 6;

(c)        the Agency otherwise defaults in its obligations under this Agreement and does not, within twenty eight (28) days of receiving notice from the Photographer, remedy such default;

(d)        the Photographer rejects the Agency’s offer to renew the term of this Agreement, in which case termination shall occur on the last day of the then current term; or

(e)        a liquidator is appointed to the Agency.
14. TERMINATION BY THE AGENCY
The Agency may terminate this Agreement by written notice to the Photographer if:

(a)           the Photographer fails to make a minimum of two submissions in each calendar year of this Agreement, each of no less than 100 Images (unless otherwise instructed by the Agency not to make submissions); or

(b)           the Photographer otherwise defaults in its obligations under this Agreement and does not, within twenty eight (28) days of receiving notice from the Agency, remedy such default.

 

15. CONSEQUENCES OF TERMINATION
Upon termination of this Agreement, the Agency will:

(a)        immediately cease to issue new licences in respect of the Accepted Images; and

(b)        ensure the Accepted Images are removed from the Agency’s website within 90 days of termination.

(c)        ensure the Accepted Images are removed from any sub-agent’s website within 180 days of termination.

The parties agree that notwithstanding termination, any licences issued by the Agency in respect of Accepted Images prior to termination will continue for their prescribed term.
16. POWER OF ATTORNEY
(a)        The Agency and the Photographer may (without imposing any obligation on either party to do so) jointly claim against any person who infringes the parties respective rights to the Images (“the Claim”).  After deducting the expenses of bringing the Claim, the parties will equally share in any recovery.  

(b)        If either party elects not to participate in the Claim, the other party may proceed with the Claim and after deducting all the expenses of bringing the Claim, any recovery shall be shared equally between the parties.
17. NOTICE
Where written notice is required in this Agreement, it may be given by use of email, return receipt requested, addressed to the Photographer or Agency at the addresses given at the beginning of this Agreement.  The parties may change their address for notice by giving written notice of any new address to the other party.
18. GENERAL

(a)        This Agreement is binding on the parties and their respective heirs, representatives, administrators, successors and assigns.

(b)        This Agreement constitutes the entire understanding between the parties.

(c)        This Agreement may only be modified by an agreement in writing signed by both parties.

(d)        Any waiver of a breach or default under this Agreement shall not be deemed a waiver of a subsequent breach or default of either the same provision or any other provision of this Agreement.

(e)        Neither party may assign is rights or obligations under this Agreement without the written consent of the other party.

(f)         The Photographer and Agency are independent contractors.

(g)        This Agreement shall be governed by the laws of New Zealand and all disputes arising under this Agreement shall be settled in accordance with the laws of New Zealand.