1.1 These termsand conditionswill:
1.1.1 apply to allAssignments undertaken bythe Photographer forthe Client and to all Usage Licences or extendedand/or additional Usage Licences relating to such Assignments; and
1.1.2 prevailoverany inconsistent termsorconditionscontained, orreferred to, in Client’s purchase order, confirmation oforder, acceptance ofEstimate, or specification orotherdocumentsuppliedbyClient,orimpliedbylaw,tradecustom,practiceorcourseofdealing.
“Photographer” meansthe commissioned Photographer whose details are set out in the Estimate and invoice(s) for anAssignment.
“Assignment” means acommission by the Client ofthePhotographer for provision of Photographer’s services ata shoot for the purpose ofcreating the Material.
“Advertiser” meansany clientoftheClient forwhose benefit oruse the Materialis commissioned.
“Client”is theparty commissioning the Photographer and includes the Client’s affiliates, assignees, and successors in title.
“Estimate”means anyemail or other documentelectronic or otherwise created bythe Photographer and setting out the Fee and expenses for anyAssignment along with information as to Usage Licences.
“Fee” means the Photographer’s fees as set out in the Estimate.
“LicensedImages” means the still and/or moving images selected from the Materialand as specifiedintheEstimateastobelicensedforuseinaccordancewiththeseTerms.“Material”means all photographic material created bythe Photographer pursuantto an Assignment and includes butis not limited to transparencies,negatives,prints, digital files or any other typeof physical or electronic material recording either stillor moving images. “Shoot Duration” means thenumber of confirmed days ofa shoot whether undertaken consecutively or in separate parts and includes all shoot, travel, recce, preparation or test days.
“Usage Licence”means thelicence to use the Licensed Images as set out in clause 3.3 and clause 9 below.
“Working Day” means a day thatis not a Saturday or Sunday or any day thatis a Bank Holiday in England.
"B.U.R" means Base Usage Rate and is the figure by reference to which additional usage fees to the usage fees stated on the Photographer's original Estimate as accepted by the Client are established.
3.1 Estimates provided bythe Photographer are based upon the information provided by
the Client in advance of preparing the Estimate.
3.2. Changes to the requirements for anAssignment before or during a shoot may increase the Fee and expenses.
3.3 Estimates shall specify the number and characteristics of Licensed Images which the Client shall be entitled touse and the media and territories in and durations for which they may be used and these shall be the terms of theUsage Licence unless otherwise agreed in writing. The Client is responsible for checking the Estimate to ensure that it provides for all requirements including but not limited to post production, high resolution files, the correct usage licences and all technical specifications for the Licensed Images.
3.4 Unless otherwise agreed in writingthe Client’s agreement of shoot date(s) shall be deemed to be acceptanceofthe Estimate.
3.5 If no B.U.R. has been stated, it will be equivalent to thePhotographer'sday shoot fee.
4.1 The shoot will be arranged on date(s) mutually agreed between theParties.
4.2 During the shoot the Photographer will take account of the Client’s reasonable instructions in respectoftheshootbrief.
4.3 If the Client is not present during the shoot thenthe Photographer’s interpretation of the brief shallbedeemedacceptabletoClient.
5.1Anormal day is up to 9 hours (including 1 hour for lunch) between 9am and 6pm on any WorkingDay.
5.2Any hoursworked outside a normalday (“AntisocialHours”) willincuradditional overtime fees for the Photographer, crew and facilities. These will be agreed between the Parties.
5.3 Additional feesfor crew,facilities and any other third parties requiredtoworkAntisocial Hours
shall be as set out in their standard terms or otherwise negotiated.
6.1 Ifa confirmed shoot iscancelled orpostponed forreasonsoutside the controlofthe Photographer (including unsuitable weather / light),the Photographer reserves the right to charge a cancellation fee at the following rates together with all incurred expenses: On Shoot Duration of two days or less:
6.1.1 cancellation on less than 3 Working Days notice - 100% of Fee + all expenses; or
6.1.2 on 3 to 6 Working Days notice - 75% of Fee + all expenses; or
6.1.3 on more than 6 Working Days notice - 50% of Fee + all expenses. On Shoot Duration in excess of 2 days and on notice equivalent to:
6.1.4 the Shoot Duration or less -100% of Fee + all expenses; or
6.1.5 more than the Shoot Duration but not more than twice the Shoot Duration - 75% of Fee + all expenses; or
6.1.6 more than twice the Shoot Duration - 25% of Fee + all expenses.
7.1 Following completion of the shoot the Photographer will deliver the Material tothe Client as soon as reasonably practicable and in the agreed format to enablethe Client to select the Licensed Images.
7.2 Subject to any previously agreed deadlines for post-production workthe Photographer will carry out any such work required as soon as reasonably practicable but cannot guarantee urgent turnaround.
7.3 Unless expressly agreed in writing between theParties the Client shall not be entitled torejecttheMaterialonthebasisofstyleorcomposition.
8.1 The Client shall ensure that it takes appropriate steps to keep safe an exact digital copy of all Material supplied for the duration ofthe Usage Licence. The Photographer will not be responsible for archiving any Material unless by prior written agreement with the Client.
8.2 Save for the purposes ofthe Usage Licence including clause 8.1 above the Material may not be stored in any electronic medium or transmitted to any third party, including for the avoidance ofdoubt any associated or branch office ofthe Client, without the written permission ofthe Photographer.
8.3 Upon publication of the Licensed Images or any ofthem and on the Photographer’s request the Client shall supply to the Photographer free ofcharge a high-resolution digital file, PDF format file or good quality hard copies ofthe Licensed Images in the context in which they are published.
9.1 The entire copyright and all similar rights throughout the world in all the Material and ownership of all physical materials created by or forthe Photographer shall vest in and be retained by the Photographer at all times.
9.2 The Client is responsible for informingtheAdvertiser of the extent and limitations of all Usage Licences.
9.3 Upon payment in full ofboth the Fee and expenses for anAssignment the Photographer grants to the Client the right to use the Licensed Images on the express terms of the Usage Licence. Nouse may be made beforepayment in full without the Photographer’s express agreement in writing.
9.4 Provided that the Client has paid in full all invoices relating to theAssignment the period of use specified in the Usage Licence commences from the date offirst use or 6 months after the shoot date, whichever is sooner (unless otherwise agreed in writing).
9.5 Usage of the Licensed Images is limited to use ofsuch images as provided by the Photographer and the Client shall not manipulate any Licensed Photograph or make use of only part of any individual image without the prior written permission ofthe Photographer.
9.6 The Client may only sub-license the right to use the Licensed Images to the disclosed Advertiser as agreed and strictly on the terms ofthe Usage Licence.
9.7 Neither the Client northeAdvertiser may use the Licensed Images in relation to any additional products or services not specified in the Usage Licence.
9.8Any licence to use the Licensed Images shall automatically be revoked if payment in full of both the Fee and expenses for anAssignment is not received by the due datespecifiedintherelevantinvoicesoriftheClientorAdvertiserbecomesinsolventorisputintoreceivership oris subject toany ofthe matters set out in clause 20.1.2 below.
10.1 The Fee is based on the Usage Licence as specified in the Estimate.Any additional orextended use (including for the avoidance ofdoubt the use ofindividual still frames from licensed moving image footage) will attract an additional fee which must be agreed by the Photographer in advance.
10.2 Any estimates of additional or extended usage licence fees provided to the Client are validfora periodofthreemonthsfromthedateoftheestimateonly(unlessotherwisenotified in writing).
10.3 The Client acknowledges that such estimates do not include provision for any third party rights which are the responsibility ofthe Client pursuant to clause 12 below.
10.4 The Client shall procure thattheAdvertiser requests any necessary extended or additional usage licence(s).
10.5 Any extended or additional use made without permission shall attract an additional fee.
11.1 All Usage Licences granted by the Photographer to the Client shall be exclusive to the Advertiser and the Client unless otherwise agreed in writing.
11.2 Subject to clause 11.4, the Photographer undertakes notuntil2 years after the shoot or the expiry of the Usage Licence(s) (whichever is later) to grant any other licence in respect ofthe Material to any third party.
11.3 After expiry of the exclusivity period the Photographer shall make such use ofthe Material including the Licensed Images as he/she sees fit.
11.4 Nothing in this clause 11 shall prevent the Photographer at any time from using the Material, whether commercial, test or speculative (images shot for presentation/pitch/ awards), in any form and in any manner worldwide for thepurpose ofpromoting his/her services, provided that in the case of unpublished Material the Photographer shall first obtain the Client’s consent, such consent not to be unreasonably withheld. The Photographer reserves the right to use the Material for this purpose whether or not in the context of the Advertiser’s advertisement or other material in which the Material is incorporated, including without limitation the Advertiser’s branding.
12.1 Engagements of third party suppliers,including models,are subject to such terms and conditions as those parties may require which shall be made available by the Photographer on request.
12.2 Estimated model fees cover modelling time only and the Client shall be responsible forclearing model usage unless otherwise stated on the Estimate.
12.3 Itemscreated specifically forthe shoot shallremain the property oftheircreator unless agreed otherwise.
12.4 The Photographer shall not be responsible for obtaining any clearances in respect of third party copyright works, trade marks, designs or other intellectual property used in relation to theAssignment or any Usage Licence or extension thereof unless expressly agreed in writing prior to the shoot.
13.1 In respect ofalleditorialusesand otherwise asadditionally stated in the Estimate the Client shall procure that the Photographer’s name is printed on or in reasonable proximity to all published reproductions ofthe Licensed Images.
14.1 All expenses and productioncostsmust be paid in advanceofthe shootunlessotherwise agreed in writing and such invoices are due on presentation.
14.2 All other invoices must be paid within 30 days ofthe date ofissue. The Photographer reserves the right to charge interest on late payments at the rate prescribed by the Late PaymentofCommercialDebts(Interest)Act1998fromthedatepaymentwasdueuntilthedatepayment is made.
14.3 If there is a delay ofone month or more between agreed pre-production work and
the shoot, the Photographer reserves the right to invoice the Client for the pre-production element of the Fee and for any expenses already incurred by the Photographer.
14.4 Usage Licence and any third party fees negotiated by the Photographer are payable regardless of whether LicensedImages are in fact used by the Client ortheAdvertiser.
14.5 All payments are due in pounds sterling unless expressly stated otherwise.
15.1 All expenses figures provided in advance ofa shoot are estimates only and the Client should allow a minimum 10% contingency budget in all cases.All estimated costs are stated exclusive of VAT.
15.2 The Photographer will endeavour to work within the agreed cost estimate, but individual costs within theEstimate may vary at his/her discretion toenable the most effective realisation of the brief.
15.3 Receipts for expenses can only be provided if requested prior to shoot confirmation. Provision of receipts will incur an accountancy charge of1.5% oftotal costs and fees incurred in respect of theAssignment subject to a minimum charge of£250 and a maximum of £600.
15.4 Where extra expenses or time are incurred by the Photographer as a result of alterations to the original brief by the Client, or otherwise at its request, the Client shall be liable to pay such extra expenses and additional fees at the Photographer’s normal rate.
16.1 Within 30 days of expiry ofany Usage Licence the Material must be returned to the Photographer in good condition and any digital files stored by the Client andthe Advertiser must be deleted.
17.1 The Client shall indemnify the Photographer and keep him/her and their respective officers and employees indemnified on a continuing basis against all liabilities, claims, costs, damages and expenses claimed or incurred (including legal costs) or licence fees due by reason ofany infringement claim, or alleged infringement, of any intellectual property rights relating to any failure by the Client to obtain third party clearances or arising out ofuse ofthe Material by the Client ortheAdvertiser outside of the Usage Licence orotherwise asa result ofany breach by the Client ortheAdvertiserof these terms.
18.1 The Photographer shall not be liable to the Client for any loss of profit, loss of contracts, loss of business or revenues, loss of production or for any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence ofthe Photographer, Photographer’s employees, agents or sub-contractors orotherwise)whichariseoutoforinconnectionwiththeshoot.
18.2 The Photographer’s maximum aggregate liability for all losses, damages, costs,
claims and expenses however or whenever arisingout ofor in connection with these Terms shall in any event be limited to the total amount ofthe fees paid to the Photographer in relation to the relevantAssignment.
18.3 Notwithstanding the above, nothing in these terms excludes or limits the liability of the Photographer for death or personal injury caused bythe Photographer’s negligence or that of his/her employees, agents or sub-contractors, for any fraudulent statement or act or for any matter which it would be illegal to exclude.
18.4 The Photographer hereby disclaims any warranties, conditions and other terms on or relating to the services hereunder or any parts thereof which might otherwise be implied whether by statute, law, custom, course ofdealing or otherwise, including without limitation any warranty, condition,orothertermsofmerchantability,quality,fitnessfor purpose or non-infringement to the fullest extent permitted by law.
19.1 The Photographer will keep confidential and will not disclose to any third parties or make use ofmaterial or information communicated tothem in confidence for the purposes of theAssignment, save as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to theAssignment.
19.2 It shall be the sole responsibility ofthe Client to arrange for any third party involved in theAssignment to enter into any confidentiality agreement.
19.3 The Photographer will not be liable for any breach ofconfidentiality by any third party.
20.1 Either party will be entitled to terminate theseTerms immediately by giving written noticetothe other ifthe other party:
20.1.1 commits a material breachof theseTermsand failstoremedythat breach(ifremediable) within 30 days after receipt of written notice requesting its remedy; or
20.1.2 isthesubjectof a bankruptcyorder or becomes insolventor makesanyarrangement or composition with or assignment for the benefit of its creditors or if any of the other party’sassets are the subject of any form of seizure, or the other party goesinto liquidation either voluntary (otherwise than for reconstruction or amalgamation) or compulsory,ora receiver oradministratoris appointedoverthe otherparty’sassets.
21.1 On termination or expiry oftheseTerms for whatever reason:
21.1.1 The Client shall pay all sums due and owing the date ofwhich will be automatically accelerated tothe date oftermination.
21.1.2The provisionsofClauses2, 3.3, 8, 9, 10, 11, 12, 13, 16, 17, 18 and 19 shall survive expiry or termination.
21.2 Any termination and/orsuspension oftheseTermsshallbe without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities ofeither party.
22.1 The Photographer shall not be liable for any failure or delay in the performance of any of such party’s obligations under theseTerms caused by any circumstances beyond such party’s reasonable control.
23.1 Waiver:No delay or omission by a party in exercising any right or remedy under theseTerms shall operate to impair such right or remedy or be construed as a waiver thereof. Any single or partial exercise of any such right or remedy shall not preclude any further exercise or the exercise of any other right or remedy.
23.2 Assignment/Sub-contracting: Neither party shall be entitled to assign, transfer,
delegate or sub-contract the whole or any part of its rights and obligations under these Terms without the prior written consent of the other party (such consent not to be unreasonablywithheldor delayed).
23.3 Notices:Any notice under theseTerms shall be duly given if: (a) delivered personally; or(b) sentby pre-paidpost,in which caseit shallbe deemed to havebeen received48hours after posting; or (c) sent by fax, in which case it shall be deemed to have been receivedwhentransmitted.
23.4 EntireAgreement and Variation:TheseTerms and the Estimate constitute the entire agreement between the parties with respect to their subject matter.
23.5 Severability: If any part of theseTerms is found by any court or other competent
authoritytobe invalid,unlawful or unenforceablethen suchpartshall be severedfromtheTerms and the remaindershallcontinueto be validand enforceableto the fullestextent permitted by law.
23.6 Relationship: Nothing in theseTerms shall be construed so as to give rise to any agency, joint venture, partnership or relationship of employer and employee between the parties.
23.7 Third Party Rights:The provisions of theseTerms are for the benefit of the parties and are not intended to confer upon any person except the parties any rights or remedies hereunder. No person who is not a party to theseTerms shall have any right to enforce any of its terms pursuant to the Contracts (Rights ofThird Parties)Act 1999.
23.8 Law and Jurisdiction:TheseTerms are governed by the laws of England & Wales and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of England & Wales.