James Hirata Photography Ltd Contractors Terms and Conditions
- James Hirata Photography has developed and designed a business model, website and software to provide Wedding Media & Planning Services to couples getting married (“the James Hirata Photography Ltd System”).
- James Hirata Photography Ltd wishes to contract suitably experienced independent photographers who will provide on site bridal assistance, photography, videography and editing services to James Hirata Photography Ltd.
- The Contractor has skills and experience and wishes to provide the services on the terms and conditions set out below.
In this Agreement (including the recitals) unless the context otherwise requires:
“Area” means the non-exclusive geographical area within which the Contractor will normally carry out the Services as described in the Schedule.
“Confidential Information” means any confidential or commercially sensitive or valuable information about or belonging to James Hirata Photography or related to or concerning the James Hirata Photography System, including the following:
- The methods, specifications, standards, policies, procedures, pricing structures, inventions, concepts and systems relating to the development, operation of the James Hirata Photography System;
- Technical and website specifications, design, functionality and code;
- Marketing and promotional programs;
- All details of any Clients and properties;
- Training materials and operations or technical manuals used in the operation of or relating to the James Hirata Photography System .
“Clients” means any Client of James Hirata Photography being any couple, family, tour agencies and individuals, and includes a prospective or previous Client.
“Equipment” means the equipment, consumables and other items used by the Contractor as specified by James Hirata Photography necessary for the Contractor to provide the Services.
“GST” means Goods and Services Tax pursuant to the Goods and Services Tax Act 1985 and its statutory amendments.
“Intellectual Property” means the James Hirata Photography trade marks (whether registered or not), brand names, copyright materials, designs, the James Hirata Photography Image, methodology, know how, website, software, trade secrets and Confidential Information belonging to or licensed to or under the control of James Hirata Photography both in existence at the commencement of this Agreement and as may come into existence during the term of this Agreement and includes all photographs, plans, drawings, concepts and other products or work produced for Clients, or otherwise created by the Contractor, or coming into existence for the purpose (whether for the sole purpose or not) of promoting and delivering the Services.
“Manual” means the James Hirata Photography Contractor operations manual and all other written instructions or standards detailing the James Hirata Photography System and updates thereto provided to the Contractor by James Hirata Photography during the Term. This is now mostly redundant as training is hands-on but could include any follow up notes, emails and requests to achieve a standard or workflow necessary for our clients.
“James Hirata Photography Image” means the specific James Hirata Photography image which shall include, but is not limited to, the colours schemes, logos, designs, website look and feel, trade names, trade marks, equipment, to the specifications of James Hirata Photography.
“James Hirata Photography Network” means all Contractors and other persons working in or delivering the James Hirata Photography System including James Hirata Photography Limited.
“James Hirata Photography System” means the know-how, James Hirata Photography methodology and system and includes the use of the Intellectual Property and includes any improvement or innovation that may be made from time to time.
“Services” means the James Hirata Photography Wedding Media & Planning services, provided by the Contractor to James Hirata Photography as detailed in the Schedule.
“Standards” means the standards of quality and performance required to be met by the Contractor as specified in the Manuals and by James Hirata Photography from time to time.
“Term” means the term of this Agreement.
Clause and other headings are for ease of reference only and shall not be deemed to form any part of the context, or to affect the interpretation of this Agreement.
Words importing the singular shall include the plural and vice versa; and words importing persons shall include body corporate and unincorporated and vice versa.
Clauses and Schedules
References to clauses and schedules are references to clauses and Schedules of this Agreement respectively and the provisions and conditions contained in the Schedules shall have the same effect as if set out in the body of this Agreement.
Reference to parties is reference to parties to this Agreement.
Any obligation not to do anything shall be deemed to include an obligation not to suffer, permit or cause that thing to be done.
- James Hirata Photography appoints the Contractor to supply photography, videography, editing and administrative services to James Hirata Photography on an ‘as required’ basis, as described in the Schedule.
- The Contractor will carry out the Services in the Area described in the Schedule unless otherwise agreed between the parties.
- The Contractor accepts that the right to provide the Services for the Area is not exclusive to the Contractor, and that James Hirata Photography does not guarantee any minimum level of work to the Contractor.
NATURE OF RELATIONSHIP
- The Contractor is in all respects an independent contractor and is not a partner, employee, franchisee or agent of the Company. The supervision and control provisions imposed under this Agreement are intended to assist in the efficient provision of quality services to James Hirata Photography’s Clients, and are not intended to alter the status of the Contractor, who will at all times remain an independent contractor.
- The Contractor shall not make any representation, statement or warranty concerning James Hirata Photography, the Business or the James Hirata Photography System which is not expressly authorised by this Agreement or otherwise by James Hirata Photography in writing.
CLIENTS AND WORK
- James Hirata Photography makes no undertaking or warranty regarding the amount of business the Contractor will carry out for James Hirata Photography.
- The Contractor is not required to work exclusively or full time for James Hirata Photography, however must give reasonable notice to James Hirata Photography of any holiday or sick leave or other periods the Contractor will not be available to carry out the Services for James Hirata Photography.
- The Contractor shall provide the Services at the locations and at the times pursuant to work orders issued by James Hirata Photography from time to time. The work order will specify details of the work required, time frames and the maximum value or number of hours each job will be invoiced at.
- The Contractor will invoice James Hirata Photography by GST Invoice on a monthly basis as specified in the Schedule.
- The parties acknowledge that all payments made under this agreement are net of income tax and that all taxes and other charges arising in relation to the payment of the Contractor are the responsibility of the Contractor.
- James Hirata Photography is not liable to pay travel expenses, entertainment expenses, wages, salaries, bonuses, holiday pay, accident compensation levies, tax or other levies, redundancy payments, insurance premiums or any other items of remuneration or taxation to the Contractor.
- At no time shall the Contractor invoice or charge a James Hirata Photography Client directly or take remuneration or reward directly from a Client without prior consent of James Hirata Photography
- All details of Clients and properties are Confidential Information owned at all times by James Hirata Photography, and all Clients are clients of the James Hirata Photography System.
- The Contractor shall not copy or retain or disclose to any other person any information about Clients other than as strictly necessary to carry out the Services under this Agreement.
- If potential Clients approach the Contractor directly to carry out the Services of James Hirata Photography the Contractor must follow the procedures set out in the Manual and any other instructions by James Hirata Photography.
James Hirata Photography PROCEDURES, MANUAL AND STANDARDS
- The Contractor shall carry out the Services in accordance with the best professional standards and execute and complete those Services with all due care, skill and diligence.
- James Hirata Photography shall loan a Manual or other written instructions to the Contractor which shall provide policy, procedures, guidelines and Standards for the supply of the Services. James Hirata Photography may update the Manual from time to time as is reasonably required. Such updates may take the form of written documents or emails. This is now redundant – with instructions and training being hands on. Updates or requests may be written by follow up emails.
- The Contractor acknowledges and agrees that the Manual and all other instructions are Confidential Information and shall at all times remain the property of James Hirata Photography and upon termination or expiry of this Agreement shall be returned to James Hirata Photography together with any copies made.
- The Contractor agrees to follow the Manual at all times and acknowledges that James Hirata Photography may, from time to time, revise or amend the Manual and in each such case shall make available to the Contractor such revisions or amendments, all of which remain the property of James Hirata Photography.
- The Contractor agrees to accept such other written or verbal advice that James Hirata Photography may make from time to time in respect to the provision of the Services.
CONTRACTORS GENERAL OBLIGATIONS
- Prior to commencing provision of the Services, James Hirata Photography shall provide, and the Contractor shall attend, Initial Training as James Hirata Photography considers necessary including the James Hirata Photography System and Services, Client and property care and service skills, and procedures.
- The cost of training provided by James Hirata Photography shall be to James Hirata Photography. The cost of travel, accommodation, food, drinks and incidental expenses for the Contractor to attend all training and meetings shall be paid by the Contractor.
- The Contractor must, at its own cost, purchase, own or have the use of the equipment, consumables and other items as specified in the Schedule and otherwise necessary to provide the Services and must only use equipment and consumables that meet or exceeds the specifications of James Hirata Photography to provide the photography Services.
- The Contractor must only use an appropriate, clean, well maintained vehicle in good repair that reasonably meets James Hirata Photography’s requirements necessary to establish and maintain a high quality reputation for the Services and James Hirata Photography. If the Contractor wishes to sign write the vehicle with the James Hirata Photography Trade Marks it must be to the specifications of James Hirata Photography, and at the Contractors cost.
- The Contractor must be tidily and appropriately dressed in the corporate dress or uniform specified by James Hirata Photography, and act in an ethical, respectable and appropriate manner when dealing with Clients or otherwise dealing with the public in the capacity of a James Hirata Photography photographer.
- Trade Marks and Trade Names. The Contractor must use James Hirata Photography business cards supplied byJames Hirata Photography. (Supplied but at Contractor’s cost)
- If a Client claims the photography services do not meet the Standards or Client brief a re-shoot may be required. Where the re-shoot is due to the Contractors act or omission, the Contractor must carry out all necessary work to complete the photography to an acceptable standard at the Contractor’s cost unless otherwise agreed with James Hirata Photography.
- James Hirata Photography may visit the Contractor from time to time to review and evaluate the performance of the Contractor including compliance with the James Hirata Photography System and Standards. The Contractor shall allow full access to James Hirata Photography or its nominee in order to carry out such performance evaluations. James Hirata Photography may also operate a “mystery shopper” or other quality assurance programme and the Contractor shall co-operate with all reasonable instructions regarding the same.
- The Contractor shall follow strictly all guidelines and Standards regarding entry onto and care and respect of Client property.
- The Contractor shall effect, maintain and comply with insurance policies with respect to the risks set out in the Schedule and shall ensure each policy of insurance includes notification on the policy of the name of James Hirata Photography as proprietor of the James Hirata Photography System.
- The Contractor shall not during the Term (or any period in renewal or extension of it) or at any time following its expiry or termination, for any reason, disparage or do anything calculated to damage James Hirata Photography’s or any other Contractor’s goodwill, reputation or intellectual property rights.
INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
- The Contractor acknowledges that James Hirata Photography is the owner of the Intellectual Property and that the Contractor shall not at any time do any acts or thing which may in any way impair the rights of James Hirata Photography in the Intellectual Property.
- The Contractor is only licensed to use the Intellectual Property during the Term of this Agreement and strictly as permitted in this Agreement and for no other purpose.
- James Hirata Photography will not use the Contractor’s photography for any reason other than to promote and provide the Services for the Clients; and
- the Contractor is licensed in perpetuity to use the Wedding photographs taken by the Contractor during the Term of this Agreement for the Contractor’s own portfolio and records without further permission; provided that such use:
- is not in conflict with the requirements of clause 10.1 below; and,
- does not breach the confidentiality and privacy of Clients; and
- does not include any enhancement or processing or other work on the products by James Hirata Photography or its agent; and
- does not, in James Hirata Photography’s reasonable opinion conflict with any other right of James Hirata Photography or of any Client or other person.
- The Contractor shall not at any time, either during the Term of this Agreement or after its expiration or termination, use or seek registration of any trade mark, company or business name which incorporates or includes, or is substantially identical to, or deceptively or confusingly similar to any of the Trade Marks, without the prior written consent of James Hirata Photography.
- The Contractor may not use the James Hirata Photography Trade Marks or independently promote the Services in any form of advertising, or on any website or other internet or electronic media or forum without the prior approval of James Hirata Photography.
- The Contractor shall notify James Hirata Photography of any improvements the Contractor purports to have made to the James Hirata Photography System including any extension of existing Services or development of any complementary Services and shall not use such improvements in the Business without James Hirata Photography’s approval. Such improvements, if accepted shall become part of the James Hirata Photography System and shall be owned by James Hirata Photography and the Contractor shall have no claim or right to any such improvement.
- The Contractor shall not during this Agreement or afterwards, use, divulge or communicate to any person any Confidential Information concerning the practice, dealings, transactions or affairs of James Hirata Photography or Clients which may have been acquired by either party pursuant to the performance of their respective responsibilities under this Agreement.
- The Contractor shall not during the Term or at any time afterwards use or disclose in any way or in any location any James Hirata Photography Intellectual Property or Confidential Information or act in any way which has the effect or which may have the effect of reducing the value or profitability, or viability of the James Hirata Photography Network.
- The covenants contained in this clause shall remain in force and effect after the expiry or termination of this Agreement and shall not be deemed waived, merged or extinguished upon such expiry or termination.
- This Agreement may be terminated by agreement at any time, or by either party by 30 days written notice to the other.
- James Hirata Photography may immediately terminate this Agreement on notice to the Contractor, if the Contractor:
- commits a breach of this Agreement, and if the breach is capable of being rectified fails to rectify such breach within 7 days written notice from James Hirata Photography requiring rectification of it;
- acts in a way which is detrimental to James Hirata Photography or the James Hirata Photography System;
- dies, becomes ill or incapacitated so as not to be able to provide the Services.
ACTION UPON TERMINATION
- Immediately on termination of this Agreement for any reason, the Contractor shall
- remove, stop using, obliterate or cover up all and any use of the James Hirata Photography Trade Marks or other representation of the James Hirata Photography System and image;
- the Contractor shall provide all Client and property details to James Hirata Photography and not retain any copies of such details;
- the Contractor shall return to James Hirata Photography (without retaining copies of them) the Manual, and all other material and items supplied by James Hirata Photography to the Contractor.
RESTRAINT ON COMPETITION
The Contractor covenants that it shall not during the Term or for 12 months after termination except with the prior written approval of James Hirata Photography, be concerned or interested in any capacity whatsoever in any Wedding photography business conducted in competition with the James Hirata Photography Network or solicit in competition with James Hirata Photography or any other Contractor, the custom or services of any person who has at any time been a Client of James Hirata Photography, which James Hirata Photography has a referral based relationship except where the work or services involved are not Wedding photography or relevant to the Wedding nature of the person’s business.
*Restraint on competition clause will come in effect once we sign a Full Time Contract.
- This Agreement is not assignable by the Contractor. The Contractor may not use any employee or Sub-Contractor to carry out the Services without the specific consent of James Hirata Photography.
- James Hirata Photography may at any time transfer, assign, novate, delegate or otherwise deal with some or all of its rights and responsibilities under this agreement and the powers and benefits of the relevant parts of this agreement shall be exercised and enjoyed by any delegate, transferee or assignee and any subsequent successors in title in accordance with the terms of the delegation, transfer or assignment.
- Failure by James Hirata Photography at any time to enforce any provision of this Agreement or the Standards or Performance Objectives shall in no way be considered to be a waiver of such provision or in any way to affect the validity of this Agreement.
INDEMNITY BY CONTRACTOR
- The Contractor shall pay all bills and debts and satisfy all obligations and liabilities incurred in the operation of the Contractors business and shall hold James Hirata Photography harmless from such bills, debts, obligations and liabilities.
- The Contractor hereby indemnifies and holds James Hirata Photography harmless from all obligations and liabilities (including legal fees incurred in defending James Hirata Photography against any legal action or proceeding) incurred by reason of any act, admission or omission of the Contractor, its agents, contractors or employees, or by reason of any injury or damage sustained by any person, or to any property in association with the Business.
- Having regard to the recitals and other provisions of this Agreement, each of the restrictive covenants contained in this Agreement is reasonably necessary for the protection of James Hirata Photography, its intellectual property rights, and other Contractors of James Hirata Photography, and does not unreasonably interfere with the freedom of action of the Contractor.
- In the event of the invalidity of any part or provision of this Agreement, such invalidity shall not affect the enforceability of any other part or provision of this Agreement.
- Any dispute or question arising out of or related to this Agreement shall first be attempted to be resolved by negotiation between the parties and failing resolution shall be referred to mediation in accordance with the LEADR NZ Inc Standard Mediation Agreement. The parties agree that if necessary the dispute will proceed to arbitration in under the provisions of the Arbitration Act 1996 unless urgent interlocutory relief is sought.
Urgent Interlocutory Relief
- Nothing in this clause will preclude or prevent either party from taking immediate steps to seek urgent interlocutory relief before an appropriate Court.
- All notices and other communications required or permitted under this Agreement shall be in writing and shall be delivered personally, or sent by registered post within New Zealand, or sent by facsimile transmission to the addresses set out in the Schedule (or at such other address for a party as shall be specified by like notice.) Any such notice shall be deemed given when so delivered personally or if by registered post within New Zealand shall be deemed to be given or received on the second following business day after posting or if sent by facsimile transmission on the next following business day.