Claire Collins Photography - Terms and Conditions
1. APPLICATION OF TERMS: These terms and conditions will 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.
2. DEFINITIONS: For the purpose of this agreement: ‘Photographer’ means Claire Collins whose details are set out in the Estimate and invoice(s) for an Assignment. ‘the Agency’ and "the Advertiser" shall where the context so admits include their respective assignees, sub-licensees 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 reference 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. ‘Fee’ means the Fee as stated on the Estimate or if no Fee is stated then this shall mean the Photographer’s ‘Dayrate’. ‘Contract’ means the ‘Commission Estimate’, once accepted by the Client, or ‘Contract’ if a separate contract has been drawn up.
3. ESTIMATES AND CONTRACTS: Estimates/Contracts provided by the Photographer are based upon the information provided by the Client in advance of preparing the Commission Estimate/Contract.
- 3.1. Changes to the requirements for an Assignment before or during a shoot may increase the Fee and expenses.
- 3.2. Estimates shall specify (if applicable) 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.
- 3.3. Unless otherwise agreed in writing the Client’s agreement of shoot date(s) shall be deemed to be acceptance of the Estimate.
- 3.4. If no Base Usage Rate (BUR) has been stated, it will be equivalent to the Photographer's Dayrate.
- 3.5. For contracts spanning a year or more the Photographer retains the right to increase her Fee and will give the Client one month’s advanced notice of any price increases. The Client retains the right to refuse and in the event that no agreement can be made there will be one months notice period for termination of contract.
4. CONDUCT OF THE SHOOT:
- 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.
5. OVERTIME AND ANTISOCIAL HOURS: A normal day is up to 9 hours (including 1 hour for lunch) between 9am and 6pm on any Working Day (Working Day means a day that is not a Saturday or Sunday or any day that is a Bank Holiday in England). 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.
6. CANCELLATION OF SHOOT:
- 6.1. If a confirmed shoot is cancelled or postponed for reasons outside the control of the Photographer (including unsuitable weather / light where applicable), the Photographer reserves the right to charge a cancellation fee at the following rates together with all incurred expenses: On Shoot Duration of three days or less:
- 6.1.1. Cancellation on less than 3 Working Days notice - 100% of Fee + all expenses. 6.1.2. Cancellation on 3 to 6 Working Days notice – 50% of Fee + all expenses. 6.1.3. More than 6 Working Days notice – 0% of Fee + all expenses.
- 6.2. For blocks of work (a block being 5 days or more) and /or ongoing repeating commissions the Photographer requires at least one month’s advance notice of termination of contract. In the event that the Photographer wishes to terminate the contract a notice of one month will be given to the Client.
- 6.2.1. Cancellation of less than one month - 100% of fee + all expenses as agreed in the contract to cover the following one month.
- 6.2.2. For ongoing/repeating Commissions any changes in the agreed dates by the Client must be discussed with the Photographer and the Photographer retains the right to charge a compensation fee equivalent to one Day rate for each day lost over 10% of the original agreement. 6.2.3 The Photographer also has the right to request date changes and these cannot be unreasonably refused by the Client.
7. STORAGE OF MATERIAL
- 7.1. 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.
- 7.2. 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.
8. COPYRIGHT: The entire copyright in the Photographs is retained by the Photographer at all times throughout the world, unless agreed otherwise on the Commission Estimate/Contract/invoice or subsequently by written agreement with the Photographer.
9. OWNERSHIP OF MATERIALS: Title to all photographs remain the property of the Photographer. Within 30 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.
10. USE: 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. The Licence only applies to the advertiser 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' 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. Permission to use the Photographs for purposes outside the terms of the Licence 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 Licences in respect of the Photographs will be subject to these terms and conditions.
11. 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 shall be entitled to use the Photographs for any purposes.
12. 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.
- 13.1.1. 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 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.
- 13.1.2. 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 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.
14. EXTENT OF LIABILITY
- 14.1. 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.
- 14.2. 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. In the case of block bookings this will be the equivalent of one standard Dayrate.
- 14.3. 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.
- 14.4. 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.
- 14.5. Equipment provided by the Client is the responsibility of the Client. The Photographer will keep the Client informed of any maintenance or repairs needed but is not liable for any delays in work if equipment is not functioning as it should be.
15. 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 Debt (Interest) Act 1998 from the date payment was due until the date payment is made.
16. 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 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.
17. REJECTION: Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.
18. CANCELLATION & POSTPONEMENT: A booking is considered firm as from the date of confirmation and accordingly the Photographer will, at her discretion, charge a fee for cancellation or postponement.
19. 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.
20. ELECTRONIC STORAGE: Where copyright has not been assigned to the Client, save for the purposes of reproduction 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.
21. APPLICABLE LAW: This agreement shall be governed by the laws of England & Wales
22. VARIATION: These Terms and Conditions shall not be varied except by agreement in writing. (NOTE: For more information on the commissioning of photography refer to Beyond the Lens produced by the AOP).