COMMISSION TERMS AND CONDITIONS
1. APPLICATION OF TERMS
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 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.
“Photographer” means the commissioned Photographer whose details are set out in the Estimate/Quote 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. “Advertiser” means any client of the Client for whose benefit or use the Material is commissioned. “Client” is the party commissioning the Photographer and includes the Client’s affiliates, assignees, and successors in title. “Estimate or Quote” 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. “Fee” means the Photographer’s fees as set out in the Estimate. “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. “Usage Licence” means the licence to use the Licensed Images as set out in clause 3.3 and clause 9 below.”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. COPYRIGHT & USAGE LICENSES
3.1 The entire copyright in the Material is retained by the photographer at all times throughout the world.
3.2 The Client is responsible for informing the Advertiser of the extent and limitations of all Usage Licences.
3.3 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.
3.4 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).
3.6 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.
3.7 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.
3.8 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
4. ESTIMATES / QUOTES
4.1 Estimates / Quotes provided by the Photographer are based upon the information provided by the Client in advance of preparing the Estimate / Quote.
4.2 Changes to the requirements for an Assignment before or during a shoot may increase the Fee and expenses.
4.3 Estimates / Quotes 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.
4.4 Unless otherwise agreed in writing the Client’s agreement of shoot date(s) shall be deemed to be acceptance of the Estimate and Quote
4.5 If no B.U.R. has been stated, it will be equivalent to the Photographer’s day shoot fee.
5. CONDUCT OF THE SHOOT
5.1 During the shoot the Photographer will take account of the Client’s reasonable instructions
in respect of the shoot brief.
5.2 If the Client is not present during the shoot then the Photographer’s interpretation of the brief shall be deemed acceptable to Client.
6. OWNERSHIP OF MATERIALS
Title to all Materials remains the property of the Photographer. When the Licence to Use the Material has expired the Materials must be returned to the Photographer in good condition within 30 days. All digital images must be removed from any storage media including USB flash drives, Hard drives, servers and online storage.
The Agency and advertiser will be authorised to publish the Materials to the exclusion of all other persons including the Photographer. However, the Photographer retains the right in all cases to use the Materials 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 Licence to Use the Photographer shall be entitled to use the Materials for any purposes.
8. 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 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 Agency and the Advertiser 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 Agency 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 Agency will be expected for the commissioned work within 14 days of issue of the relevant invoice. If the invoice is not paid, in full, within 30 days The Photographer reserves the right to charge 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 agency or the Advertiser, 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 overleaf as having been agreed or estimated.
Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition. (Please note, the Client has been invited to attend the shoot to minimise any possible misinterpretation of the brief).
13. 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. 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 stipulated rates together with all incurred expenses:
14. RIGHT TO A CREDIT
If stated within image metadata, on the commission quote, estimate or confirmation of booking and the licence is marked ‘Right to a Credit’ the Photographers name will be printed on or in the reasonable proximity to all published reproductions of the Photograph(s). By setting this out overleaf 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.
15. SUPPLY TO THIRD PARTIES
The Licence is non transferable and only applies to the advertiser and product stated on the front of the form.
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.
16. ELECTRONIC STORAGE & DIGITAL USE OF IMAGES
16.1 Save for the purposes of production for the licensed use(s), the Materials may not be stored in any form of electronic medium or digital images transmitted without the written permission of the Photographer. The Agency and Advertiser acknowledge that the Materials are the Photographer’s valuable property as are any digital Images created from the Materials (“ orphan Images”.)
16.2 Each digital image created by the Agency and Advertiser shall be recorded and labelled with the Image reference number used by the Photographer and the Photographers copyright credit information as an integral part of the image file including all metadata and held on an electronic database under the Advertisers sole possession and control.
16.3 Unless otherwise agreed any digital image the Agency and Advertiser create must not be greater in size than 640×480 pixels 72ppi.
Any use of the digital images shall be in a format designed so that it will not be possible to alter manipulate or adapt any digital Image or its metadata in any way during the normal course of using the product.
16.4 The Agency and Advertiser agree to destroy all Digital Images including any pre-press or preproduction copies of the images and any copies or records of the Images held on a database within 90 days of the date of receipt of the Images for completion of the maximum production run or expiry of the license term whichever is later.
16.5 Manipulation of the image or use of only a portion of the image may not take place without the permission of the Photographer.
17. ONLINE ELECTRONIC DELIVERY OF IMAGES
Digital images are supplied via a secure online server and the delivery by email of a private hyperlink to view or download images. The Photographer shall not be liable for any loss or damage suffered by the client or advertiser or by any third party should the login password or access link be shared or supplied to a third party or any other person other than the intended recipient receiving an invite to view and or download images. This includes where supplied, images attached to an email. The Photographer reserves the right to remove any images stored in an online archive.
18. APPLICABLE LAW
This agreement shall be governed by the laws of England, Wales & Scotland.
These Terms and Conditions shall not be varied except by agreement in writing.