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

means 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.

means digital files of scanned Photographs or Photographs captured by a digital camera.

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

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.

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

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

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

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

During the term of this Agreement:

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

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

All Photographs accepted by the Agency, being Accepted Photographs, will be accepted on the terms of this Agreement. This Agreement does not apply to assignment photography.

(a)    Subject to subclause (b), the Photographer grants the Agency the exclusive right to market, distribute and license non-exclusive rights to use Accepted Photographs worldwide, to any persons and in any manner.

(b)    If the Agency wishes to license exclusive rights to Accepted Photographs, it shall request the Photographer’s permission (which shall not be unreasonably withheld).

(c)    The Agency will use its best efforts to market, distribute and license Accepted Photographs 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 Photographs.

The Photographer will:

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

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

The Photographer may place reasonable restrictions on the Agency’s use of the Accepted Photographs.

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

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 Photographs 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.

(a)        The Agency will pay the Photographer a commission of 40% of the Net Billings received by the Agency during the previous calendar month from licensing the Accepted Photographs.   

(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.

The Photographer:

(a)        may not license Accepted Photographs (including, for the avoidance of doubt, all Similars of the Accepted Photographs) either directly or via another photo library, without the prior written permission of the Agency;

(b)        consents to the Agency’s use without charge of the Accepted Photographs in brochures, advertisements, internet websites, joint ventures and other promotions of the Agency reasonably designed to enhance the marketing of the Accepted Photographs; 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 Photographs, provided such use is dignified and consistent with the Photographer’s reputation.

(a)        When supplying Photographs to the Agency, the Photographer shall indicate which Photographs 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 Photographs 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 Photograph.

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

(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 Photographs 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.

(a)        Copyright in the Photographs remains the property of the Photographer.

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

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

(d)        The Photographer warrants that the Photographs 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 Photographs.

(e)        The Photographer shall place a copyright notice on all Photographs.  If photographs are supplied as Digital Files the copyright notice must be displayed in the IPTC/File Information.

(f)         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 Photographs (including any Similars) to any person that may, pursuant to this Agreement, be submitted to the Agency and become Accepted Photographs (or Similars of Accepted Photographs) without the prior written acknowledgement by the Agency.

(a)        While the Agency will exercise reasonable care in licensing third parties the right to use the Accepted Photographs, the Photographer acknowledges that the Agency has no obligations, express or implied, beyond the terms of this Agreement. 

(b)        While the Agency will exercise reasonable care in relation to the Accepted Photographs, the Photographer acknowledges that the Agency is not obliged to insure any of the Photographs and that risk in the Photographs remains with the Photographer at all times.

(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 Photograph).

(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 Photograph, in circumstances where the Photographer supplied the Agency with Model Releases and/or Property Releases in connection with the Approved Photographs 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 Photographs or alterations made to Accepted Photographs, after the Accepted Photographs 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 Photograph) if the Agency supplies Accepted Photographs 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.

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.

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 Photographs (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.

Upon termination of this Agreement, the Agency will:

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

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

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

(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.