Standard Terms & Conditions For Business
Standard Terms & Conditions For Business
1. APPLICATION OF TERMS
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1.1 These terms and conditions will:
1.1.1 apply to all Assignments undertaken by the Photographer
for the Client and to all Usage Licences or extended and/or additional
Usage Licences relating to such Assignments; and
1.1.2 prevail over any inconsistent terms or conditions
contained, or referred to, in Client’s purchase order, confirmation of
order, acceptance of Estimate, or specification or other document
supplied by Client, or implied by law, trade custom, practice or
course of dealing.
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2. DEFINITIONS
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“Photographer” means the commissioned Photographer whose details are
set out in the Estimate and invoice(s) for an Assignment.
“Assignment” means a commission by the Client of the Photographer for
provision of Photographer’s services at a shoot for the purpose of
creating the Material.
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“Advertiser” means any client of the Client for whose benefit or use
the Material is commissioned.
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“Client” is the party commissioning the Photographer and includes the
Client’s affiliates, assignees, and successors in title.
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“Estimate” means any email or other document electronic or otherwise
created by the Photographer and setting out the Fee and expenses for
any Assignment along with information as to Usage Licences.
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“Fee” means the Photographer’s fees as set out in the Estimate.
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“Licensed Images” means the still and/or moving images selected from
the Material and as specified in the Estimate as to be licensed for
use in accordance with these Terms. “Material” means all photographic
material created by the Photographer pursuant to an Assignment and
includes but is not limited to transparencies, negatives, prints,
digital files or any other type of physical or electronic material
recording either still or moving images. “Shoot Duration” means the
number of confirmed days of a shoot whether undertaken consecutively
or in separate parts and includes all shoot, travel, recce,
preparation or test days.
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“Usage Licence” means the licence to use the Licensed Images as set
out in clause 3.3 and clause 9 below.
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“Working Day” means a day that is not a Saturday or Sunday or any day
that is a Bank Holiday in England.
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"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.
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3. ESTIMATES
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3.1 Estimates provided by the Photographer are based upon
the information provided by
the Client in advance of preparing the Estimate.
3.2. Changes to the requirements for an Assignment 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 to use and the
media and territories in and durations for which they may be used, and
these shall be the terms of the Usage 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 writing the Client’s
agreement of shoot date(s) shall be deemed to be acceptance of the
Estimate.
3.5 If no B.U.R. has been stated, it will be equivalent to
the Photographer's day shoot fee.
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4. CONDUCT OF THE SHOOT
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4.1 The shoot will be arranged on date(s) mutually agreed
between the Parties.
4.2 During the shoot the Photographer will take account of
the Client’s reasonable instructions in respect of the shoot brief.
4.3 If the Client is not present during the shoot then the
Photographer’s interpretation of the brief shall be deemed acceptable
to Client.
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5. OVERTIME AND ANTISOCIAL HOURS
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5.1 A normal day is up to 9 hours (including 1 hour for
lunch) between 9 am and 6 pm on any Working Day.
5.2 Any hours worked outside a normal day (“Antisocial
Hours”) will incur additional overtime fees for the Photographer, crew
and facilities. These will be agreed between the Parties.
5.3 Additional fees for crew, facilities and any other third
parties required to work Antisocial Hours
shall be as set out in their standard terms or otherwise negotiated.
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6. CANCELLATION OF SHOOT
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6.1 If a confirmed shoot is cancelled or postponed for
reasons outside the control of the 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.
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7. ACCEPTANCE & DELIVERY
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7.1 Following completion of the shoot the Photographer will
deliver the Material to the Client as soon as reasonably practicable
and in the agreed format to enable the Client to select the Licensed
Images.
7.2 Subject to any previously agreed deadlines for
post-production work the 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 the Parties
the Client shall not be entitled to reject the Material on the basis
of style or composition.
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8. STORAGE OF MATERIAL
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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 of the 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 of the 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
of doubt any associated or branch office of the Client, without the
written permission of the Photographer.
8.3 Upon publication of the Licensed Images or any of them
and on the Photographer’s request, the Client shall supply to the
Photographer free of charge a high-resolution digital file, PDF format
file or good-quality hard copies of the Licensed Images in the context
in which they are published.
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9. COPYRIGHT & USAGE LICENCES
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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 for the Photographer shall vest in and be retained by
the Photographer at all times.
9.2 The Client is responsible for informing the Advertiser
of the extent and limitations of all Usage Licences.
9.3 Upon payment in full of both the Fee and expenses for an
Assignment the Photographer grants to the Client the right to use the
Licensed Images on the express terms of the Usage Licence. No use may
be made before payment in full without the Photographer’s express
agreement in writing.
9.4 Provided that the Client has paid in full all invoices
relating to the Assignment the period of use specified in the Usage
Licence commences from the date of first 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 of such
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 of the
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 of the Usage Licence.
9.7 Neither the Client nor the Advertiser may use the
Licensed Images in relation to any additional products or services not
specified in the Usage Licence.
9.8 Any licence to use the Licensed Images shall
automatically be revoked if payment in full of both the Fee and
expenses for an Assignment is not received by the due date specified
in the relevant invoices or if the Client or Advertiser becomes
insolvent or is put into receivership or is subject to any of the
matters set out in clause 20.1.2 below.
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10. ADDITIONAL/EXTENDED USAGE
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10.1 The Fee is based on the Usage Licence as specified in the
Estimate. Any additional or extended use (including for the avoidance
of doubt, the use of individual still frames from licensed moving image
footage) will attract an additional fee which must be agreed upon by the
Photographer in advance.
10.2 Any estimates of additional or extended usage licence
fees provided to the Client are valid for a period of three months
from the date of the estimate only (unless otherwise notified in
writing).
10.3 The Client acknowledges that such estimates do not
include provision for any third-party rights which are the
responsibility of the Client pursuant to clause 12 below.
10.4 The Client shall procure that the Advertiser requests any
necessary extended or additional usage licence(s).
10.5 Any extended or additional use made without permission
shall attract an additional fee.
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11. EXCLUSIVITY
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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 not
until 2 years after the shoot or the expiry of the Usage Licence(s)
(whichever is later) to grant any other licence in respect of the
Material to any third party.
11.3 After the expiry of the exclusivity period the Photographer
shall make such use of the 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 the purpose of promoting 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.
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12. THIRD-PARTY RIGHTS
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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 for clearing model usage unless otherwise
stated on the Estimate.
12.3 Items created specifically for the shoot shall remain the
property of their creator 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 the
Assignment or any Usage Licence or extension thereof unless expressly
agreed in writing prior to the shoot.
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13. CREDITS
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13.1 In respect of all editorial uses, and otherwise as
additionally stated in the Estimate the Client shall procure that the
Photographer’s name is printed on or in reasonable proximity to all
published reproductions of the Licensed Images.
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14. PAYMENTS
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14.1 All expenses and production costs must be paid in advance
of the shoot unless otherwise agreed in writing and such invoices are
due on presentation.
14.2 All other invoices must be paid within 28 days of the
date of issue. The Photographer reserves the right to charge interest
on late payments at the rate prescribed by the Late Payment of
Commercial Debts (Interest) Act 1998 from the date payment was due
until the date payment is made.
14.3 If there is a delay of one 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 Licensed Images are in
fact used by the Client or the Advertiser.
14.5 All payments are due in pounds sterling unless expressly
stated otherwise.
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15. EXPENSES
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15.1 All expense figures provided in advance of a 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 the Estimate may vary at
his/her discretion to enable 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 of 1.5% of total costs and fees incurred in respect
of the Assignment 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.
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16. RETURN OF MATERIALS
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16.1 Within 28 days of expiry of any Usage Licence the
Material must be returned to the Photographer in good condition, and
any digital files stored by the Client and the Advertiser must be
deleted.
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17. INDEMNITY
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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 of any 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 of the use of the Material
by the Client or the Advertiser outside of the Usage Licence or
otherwise as a result of any breach by the Client or the Advertiser of
these terms.
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18. EXTENT OF LIABILITY
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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 of the Photographer, Photographer’s employees, agents or
sub-contractors or otherwise) which arise out of or in connection with
the shoot.
18.2 The Photographer’s maximum aggregate liability for all
losses, damages, costs,
claims and expenses however or whenever arising out of or in
connection with these Terms shall, in any event, be limited to the
total amount of the fees paid to the Photographer in relation to the
relevant Assignment.
18.3 Notwithstanding the above, nothing in these terms
excludes or limits the liability of the Photographer for death or
personal injury caused by the 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 of dealing or otherwise, including without
limitation any warranty, condition, or other terms of merchantability,
quality, fitness for purpose or non-infringement to the fullest extent
permitted by law.
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19. CONFIDENTIALITY
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19.1 The Photographer will keep confidential and will not
disclose to any third parties or make use of material or information
communicated to them in confidence for the purposes of the Assignment,
save as may be reasonably necessary to enable the Photographer to
carry out his/her obligations in relation to the Assignment.
19.2 It shall be the sole responsibility of the Client to
arrange for any third party involved in the Assignment to enter into
any confidentiality agreement.
19.3 The Photographer will not be liable for any breach of
confidentiality by any third party.
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20. TERMINATION
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20.1 Either party will be entitled to terminate these Terms
immediately by giving written notice to the other if the other party:
20.1.1 commits a material breach of these Terms and fails to
remedy that breach (if remediable) within 28 days after receipt of
written notice requesting its remedy; or
20.1.2 is the subject of a bankruptcy order or becomes insolvent
or makes any arrangement or composition with or assignment for the
benefit of its creditors or if any of the other party’s assets are the
subject of any form of seizure, or the other party goes into
liquidation either voluntary (otherwise than for reconstruction or
amalgamation) or compulsory, or a receiver or administrator is
appointed over the other party’s assets.
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21. EFFECTS OF TERMINATION
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21.1 On termination or expiry of these Terms for whatever reason:
21.1.1 The Client shall pay all sums due and owing the date of
which will be automatically accelerated to the date of termination.
21.1.2 The provisions of Clauses 2, 3.3, 8, 9, 10, 11, 12, 13, 16, 17,
18 and 19 shall survive expiry or termination.
21.2 Any termination and/or suspension of these Terms shall be
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 of either party.
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22. FORCE MAJEURE
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22.1 The Photographer shall not be liable for any failure or
delay in the performance of any of such party’s obligations under
these Terms caused by any circumstances beyond such party’s reasonable
control.
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23. GENERAL
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23.1 Waiver: No delay or omission by a party in exercising any
right or remedy under these Terms 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 unreasonably withheld or delayed).
23.3 Notices: Any notice under these Terms shall be duly given
if: (a) delivered personally; or (b) sent by pre-paid post, in which
case it shall be deemed to have been received 48 hours after posting;
or (c) sent by fax, in which case it shall be deemed to have been
received when transmitted.
23.4 Entire Agreement and Variation: These Terms and the
Estimate constitute the entire agreement between the parties with
respect to their subject matter.
23.5 Severability: If any part of these Terms is found by any
court or other competent
authority to be invalid, unlawful or unenforceable then such part
shall be severed from the Terms and the remainder shall continue to be
valid and enforceable to the fullest extent permitted by law.
23.6 Relationship: Nothing in these Terms 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 these Terms 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 these Terms shall have any right to enforce any
of its terms pursuant to the Contracts (Rights of Third Parties) Act
1999.
23.8 Law and Jurisdiction: These Terms 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.
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