For the purpose of this agreement the “Photographer” shall refer to Owen Billcliffe or other photographer representing Owen Billcliffe, and the “Client” shall, where the context so admits, include the Client’s respective assignees, sub-licensees and successors in title.
“Image(s)” means all photographic material furnished by the Photographer, whether digital, transparencies, negatives, prints or any other type of physical or electronic material.
2. COPYRIGHT & CREDIT
The entire copyright in the Image(s) is retained by the Photographer at all times throughout the world unless copyright has been purchased by the Client.
Unless otherwise agreed during booking, the Photographer’s name will be printed on or in reasonable proximity to all published reproductions of the Image(s). The Photographer also asserts his/her statutory right to be identified in the circumstances set out in Sections 77-79 of the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof.
The License to Use comes into effect from the date of payment of the relevant invoice(s). No use may be made of the Image(s) before payment in full of the relevant invoice(s) without the Photographer’s express permission. Any permission which may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Client is put into receivership or liquidation.
The License only applies to the Client and product as stated on the front of the form and its benefit shall not be assigned to any third party without the Photographer’s permission.
Accordingly, even where any form of ‘all media’ License is granted, the Photographer’s permission must be obtained before any use of the Image(s) for other purposes e.g. use in relation to another product or sub-licensing through a photo library.
Permission to use the Image(s) for purposes outside the terms of the License will normally be granted upon payment of a further fee, which must be mutually agreed (and paid in full) before such further use. Unless otherwise agreed in writing, all further Licenses in respect of the Image(s) will be subject to these terms and conditions.
The Client may be authorized to publish the Image(s) to the exclusion of all other persons. However, the Photographer retains the right in all cases to use the Image(s) in any manner at any time and in any part of the world for the purposes of advertising or otherwise promoting his/her work.After the exclusivity period indicated in the License to Use the Photographer shall be entitled to use the Image(s) for any purposes including submission to stock and news agencies unless otherwise agreed.
5. CLIENT CONFIDENTIALITY
The Photographer will keep confidential and will not disclose to any third parties or make use of material or information communicated to him/her in confidence by the Client for the purposes of the photography, save as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the commission.
The Photographer agrees to indemnify the Client against all expenses, damages, claims and legal costs arising out of any failure by the Photographer to obtain any clearances for which he/she was responsible in respect of third party copyright works, trade marks, designs or other intellectual property.
The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed before the shoot. In all other cases the Client shall be responsible for obtaining such clearances and will indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.
Payment by the Client will be expected for the commissioned work within 30 days of the issue of the relevant invoice unless otherwise explicitly agreed in writing between the Photographer and the Client at time of booking.
If the invoice is not paid, in full, within 30 days (or specified date) the Photographer reserves the right to charge a penalty fee plus interest at the rate prescribed by the Late Payment of Commercial Debt (Interest) Act 1998 from the date payment was due until the date payment is made.
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 their request, the Agency shall give approval to and be liable to pay such extra expenses or fees at the Photographer’s normal rate to the Photographer in addition to the expenses shown as having been agreed or estimated.
The Client is responsible for sending an authorized representative to the shoot. If no representative is present, the Client must accept Photographer’s judgment as to the execution of the Image(s).
(a) If the Client requires a reshoot, Client will pay Photographer an additional fee of one hundred percent of the fee stated in the invoice for the original shoot, plus all expenses for the reshoot.
(b) If a reshoot is required for reasons beyond the control of Photographer or Client, including, but not limited to, weather conditions, acts of God or the fault of a third party, Photographer will not charge an additional fee, but Client agrees to pay all expenses for the reshoot.
10. CANCELLATION & POSTPONEMENT
A booking is considered firm as from the date of confirmation and accordingly the Photographer will, at his/her discretion, charge a fee for cancellation or postponement. Standard cancellation fees cover all reasonable expenses incurred in preparation, plus a percentage of outstanding fees:
(a) Cancellation or postponement with 24 hours of commencement may be subject to a 50% fee;
(b) Cancellation or postponement within 48 hours of commencement may be subject to a 35% fee.
(c) Deposits are non-refundable under any circumstances.
It is understood that sometimes life just doesn’t work out and the Photographer will take such circumstances into consideration.
Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.
12. FAILURE TO PERFORM
If the Photographer is unable to supply his photographic services due to illness, mechanical breakdown, accident, acts of God, or any other cause beyond his control, then Photographer will attempt to procure the services of another professional photographer to fulfill his obligations. If that does not succeed, Photographer will return any fees paid by Client and will have no further liability with respect to this Agreement, and the Photographer will not be responsible or liable for any other damages beyond the amount of this Agreement.
This limitation of liability will also apply in the event that any Image(s) are lost or damaged through equipment malfunction, or otherwise, without the fault of the Photographer.
13. ARCHIVING DIGITAL FILES
While the Photographer may choose to archive the Image(s), it is the Client’s responsibility to properly store and archive the Image(s) for the duration of the term of license. The Photographer cannot guarantee the availability of any Image(s) beyond the date of first delivery to the Client.
The Client is aware that optical, magnetic, electronic, and any other media for storing digital data are inherently unstable. The Client hereby releases the Photographer and his contractors, and representatives, from any liability for any claims, damages, or costs, arising from any media supplied by Photographer becoming unusable.
All digital files created by, or on behalf of, the Client that contain any Image(s) will be deleted or destroyed within ten days after the expiration date of license.
14. DIGITAL & PRINT QUALITY
The Photographer is committed to providing high quality services. Unless otherwise specified on the reverse side of this Agreement, Photographer may deliver, and the Client agrees to accept, the Image(s) encoded in an industry-standard data format that the Photographer may select, at a resolution that the Photographer determines will be suitable to the reproduction technology and use(s) for which the Image(s) is licensed.
The Photographer uses cameras and monitors that are colour calibrated to industry standards. But due to variances in other monitors, software and computer platforms, the Image(s) may display differently on other monitors. Therefore, neutrals will be set for mathematical neutrality and colour will be adjusted for pleasing tonalities.
It is the Client’s responsibility to verify that the digital data, including colour profile, if provided, are suitable for reproduction of the expected quality and colour accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable, the Photographer’s sole obligation will be to replace or repair the data, but in no event will the Photographer be liable for poor reproduction quality, delays, losses, expenses, or consequential damages, resulting directly, or indirectly, from defects or errors in digital files or their use.
The Photographer is committed to using high quality products. However, the Client is aware that colour dyes, inks, and other materials, used in photography may fade or discolour over time. As such, Client releases Photographer and his contractors, and representatives, from any liability for any claims, damages, or costs, arising from any fading or discolouration of any photographic prints.
15. ACCEPTANCE OF TERMS
Client may not assign or transfer this Agreement or any of the rights granted hereunder. This Agreement is binding upon, and inures to the benefit of, Client and Photographer, as well as their respective principals, employees, representatives, and successors. Client and its principals, and employees, are jointly and severally liable for the performance of all payments and other obligations hereunder.
No amendment or waiver of any items is binding unless set forth in writing and signed by the parties. E-mail and electronic signatures will be considered legal and binding. However, the invoice may reflect, and the Client is bound by, the Client’s oral authorizations for any additional Image(s), fees, and expenses, that could not be confirmed in writing due to the immediate proximity of completing the photography assignment.
This Agreement will be deemed to be a contract made under the laws of England and Wales, and for all purposes will be interpreted in its entirety in accordance with these laws. The Client specifically and irrevocably confers personal jurisdiction over it by the courts of England and Wales. Client will pay all arbitration and court costs, reasonable legal fees, expenses, and legal interest, on any award or judgment in favour of the Photographer.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
In addition to oral and written agreements, use of any Image(s) by the Client will constitute acceptance of all the above terms and conditions.