Terms and Conditions for James Deavin, hereafter named as ‘the photographer’

 

1. Definitions

For the purpose of this agreement ‘the agency’ and ‘the advertiser’ shall where the context so admits include their respective assignees, sublicencees and successors in title. In cases where the photographer’s client is a direct client (i.e. with no agency or intermediary) all references in this agreement to both ‘the agency’ and ‘the advertiser’ shall be interpreted as references to the photographer’s client.

‘Photographs’ means all photographic material furnished by the photographer, whether transparencies, negatives, prints or any other type of physical or electronic material.

2. General

These terms and conditions shall apply to this project and to all contracts with us to the exclusion of any other terms and conditions. Whilst we shall endeavour to adhere to the estimates issued by us, they are merely estimates and do not constitute an offer and are in no way binding on us. As members of the Association of Photographers we abide by the Association’s recommended code of professional conduct.

3. Costs and Fees

3.1. Estimated costs and fees shall be deemed applicable for a term of 90 days only. Fees are based on daily rates applicable at the date of estimate. We reserve the right to apply, without notification, new daily rates, if relevant, after the 90 day term.

3.2. Materials and/or services purchased by us on your behalf may carry a 23% service charge when re-invoiced to you.

3.3. All prices are quoted exclusive of VAT. In the instance of new business, 50% of estimated fees and/or costs may be invoiced in advance and work shall not commence until payment of this sum.

4. Copyright

4.1. The entire copyright in the photographs is retained by the photographer at all times throughout the world.

4.2. Subject to third party rights we reserve the right to charge a fee for the assignment to you on the copyright in the Work following the expiry of this contract.

5. Ownership of materials

Title to all photographs remains the property of the photographer. When the licence to use the material has expired the photographs must be returned to the photographer in good condition within 30 days.

6. Use

6.1. The licence to use comes into effect from the date of payment of the relevant invoice(s). No use may be made of the photographs 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 agency is put into receivership or liquidation. Where use is restricted in the agreement, permission to use the photographs for other purposes will normally be granted upon payment of a further fee to be mutually agreed.

6.2. The photographer retains the right in all cases to use the photographs in any manner at any time and in any part of the world for the purposes of advertising or otherwise promoting his work.

6.3. The licence only applies to the Advertiser and product as stated in the invoice and its benefit shall not be assigned to any third party without the photographer’s permission. Accordingly, even where any form of ‘all media’ licence is granted, the photographer’s permission must be obtained before any use of the Photographs for other purposes e.g. use in relation to another product or sub-licensing through a photo library.

7. Exclusivity

The agency and advertiser will be authorised to publish the photographs to the exclusion of all other persons including the photographer. However, the photographer retains the right in all cases to use the photographs 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 is entitled to use the photographs for any purposes.

8. Client confidentiality

The photographer will keep confidential and will not disclose to any third parties or make use of any material or information communicated to him/her in confidence for the purposes of photography, save as may be reasonably necessary to enable to the photographer to carry out his/her obligations in relation to the commission.

9. Indemnity

The photographer agrees to indemnify the agency and the advertiser against all expenses, damages, claims and legal costs arising out of any failure of 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.

10. Payment

Payment by the agency will be expected for the commissioned work within 30 days of the 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 Debts (Interest) Act 1998 from the date payment was due until the date payment is made. Interest will be calculated as follows: Bank of England base rate plus 8.00%, plus a debt recovery fee.

11. Expenses

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 their approval to and be liable to party 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.

12. Rejection

Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.

13. Cancellation and 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.

14. Right to a credit

If the box on the estimate and the licence marked ‘right to a credit’ has been ticked the photographer’s name will be printed on or in reasonable proximity to all published reproductions of the photograph(s). By ticking the box 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 only applies to the advertiser and product as stated on the front of the form.

16. Electronic storage

Save for the purposes of production for the licensed use(s), the photographs may not be stored in any form of electronic medium without the written permission of the photographer. Manipulation of the image or use of only a portion of the image may only take place with the permission of the photographer. The photographer will not be liable under any circumstance, consequential, directly or indirectly for loss of original electronic date due to the failure of any computer or other electrical equipment or component.

17. Digital supply

Digital supply will be made in the following format unless agreed in writing by the client and photographer before the shoot date:

Tif files 8 bit Adobe 1998 RGB 300 dpi, minimum of 50mb, plus a jpeg of each image and a digital contact sheet of all jpeg files (pad file). The client will be responsible for CMYK conversion and SUM (Sharpening in Photocopy). Number of finished files per day will be 10, unless pre-agreed up to a maximum of 20 per day.

18. Terms governing the uploading, processing, and use of photographs that form part of a virtual tour hosted in any way by Google.

(a) Client agrees that the uploading, processing, and use of the photographs that form part of a virtual tour will be governed by Google Terms of Service.

(b) Authorisation to upload photographs to Google for Google’s use. Client hereby authorises photographer to upload the Photographs to Google on the client’s behalf and licenses the photographs for Google’s use in accordance with the Google Terms of Service.

(c) In exchange for the agreed fee the photographer will take photographs as agreed, create panoramic images suitable for a virtual tour hosted by Google, and upload and publish to the agreed Google property. Once published the tour must be managed by the client and the photographer’s liability is concluded.

19. Applicable law

This agreement shall be governed by the laws of England and Wales.

20. Variation

These terms and conditions shall not be varied except by agreement in writing.