1. DEFINITIONS
1.1 “The Commission” means the commission to take the Photographs undertaken by the Photographer on behalf of the Client in consideration of the fee. Details of the Commission are set out in the Commission Agreement documentation.
1.2 “The Client” means the client named on the commission agreement.
1.4 “The License to Use” means the license to use the Photographs granted by the Photographer to the Client following payment of the Fee for the purposes and the period set out.
1.5 “The Photographer” means Gavin White.
1.6 “The Photographs” means all photographic material produced by the Photographer, which includes negatives, prints and digital files.
2. COMMISSION
2.1 The Client engages the Photographer to carry out the Commission for the Fee. In consideration of the payment of the Fee, the Photographer agrees to grant to the Client a License to Use the Photographs within the terms and conditions set out herein.
3. COPYRIGHT
3.1 The Photographer retains the copyright of the Photographs at all times. A licence of use will be issued to the client for the company's use when digital files are delivered to the client.
4. OWNERSHIP OF MATERIALS
4.1 Title to the Photographs remains the sole property of the Photographer
5. USE
5.1 The Photographer grants to the Client the ‘Licence to Use’ the Photographs from the date of full payment of the Fee for the purposes set out in the written commission agreement and herein. No use may be made of the Photographs before payment in full of the Fee without the Photographer giving written permission.
5.2 Any permission which may be given for prior use will automatically be revoked if: full payment of the fee is not made by the due date; if the Client (being a company) has any distress or execution levied against its goods; or if the Client has a Receiver or an Administrative Receiver appointed over some or all of its property or assets; or if the Client has a winding-up petition presented against it (whether compulsory or voluntarily; or is otherwise unable to pay its debts as they fall due within the meaning of Section 123(1)(e) of the Insolvency Act 1986; or if an individual partnership has any distress or execution levied against its goods or has a petition presented against him or any of his partners, in bankruptcy or otherwise, and is, in the reasonable opinion of the Photographer, unable to pay his debts when the payments are due.
5.3 The License to Use the Photographs is granted solely to the Client, and its benefit shall not be assigned to any third party without the Photographer's express prior written permission. In addition, even where any form of “all media” License to Use is granted, the Photographers express prior written permission must be obtained before any use of the Photographs for any other purpose, for example, relating to another product or sub-licensing through a photo-library.
5.4 No third party is allowed to be employed or assigned by the client to edit any of the files/photographs, excluding colour profile adjustment, image cropping and image resizing purposes.
5.5 Permission to use the Photographs for purposes outside the terms of the license may be granted by the Photographer at his discretion upon payment of a further fee, which must be agreed between the parties before such use.
6. DELIVERY
6.1 The Photographer will deliver the Photographs as described in the commission agreement by the delivery date specified.
6.2 Time for delivery shall not be the core of the agreement.
6.3 The Photographer shall not in any circumstances be liable to the Client for any loss, whether direct or indirect or for loss of profit, occasioned by late delivery or on any other grounds in any instance.
6.4 When files are delivered, it is the client's responsibility to immediately download and/or back up files to storage to prevent loss and ensure future access. Online Galleries are guaranteed for a three-month period from initial delivery.
7. PHOTOGRAPHERS RIGHT TO USE PHOTOGRAPHS
7.1 The Photographer maintains the right in all cases to use the Photographs in any manner, at any time and in any part of the world for any purpose and in any context, including advertising or otherwise promoting their own services and work.
8. CONFIDENTIALITY
8.1 Each party will keep confidential and will not disclose to any third parties or make use of material or information communicated to it in confidence for the purposes of the Commission, except for what may be reasonably necessary to enable the Photographer to carry out his obligations in relation to the Commission.
8.2 The Photographer will, if required, agree to additional confidentiality agreements to the satisfaction of the client where commission photographs may be of new or as yet undisclosed services.
9. INDEMNITIES
9.1 The client shall be responsible for obtaining clearances in respect of third-party copyright works, trademarks, designs or other intellectual property and will indemnify the Photographer against all expenses, damages, claims, and legal costs arising out of failure to obtain such clearances.
9.2 The client is responsible for gaining permission and paying any required costs to use any locations for photoshoots that are not owned, rented or hired by the photographer. If the commission is not permitted to go forward, then the client will still be required to pay the full fee of the commission to the photographer.
10. PAYMENT, DEPOSITS, COMMISSION AGREEMENT
10.1 Deposits will be agreed in written and/or verbal form prior to a commission agreement exchange.
10.2 Deposits are non-refundable in the event of client cancellation.
10.3 The Photographer reserves the right to cancel the commission agreement. In this unlikely event, the deposit will be refunded to the client. The deposit fee amount will be variable depending on the total commission value.
10.4 The deposit value will be documented in the commission agreement.
10.5 Payment of the Fee for the Photographs is due on the date shown in the commission agreement. The method of payment will be stated on the commission agreement.
11. EXPENSES
11.1 Where the Photographer incurs extra expenses or time as a result of alterations to the original brief for the Commission by the Client, or otherwise at its request, the Client shall be liable to pay such extra expenses or fees at the Photographer's standard rate, in addition to the expenses agreed on the commission as having been agreed or estimated.
12. REJECTION
12.1 There is no right to reject the Photographs on the basis of style or composition nor to reject the Photographs on the basis of any alleged discrepancy between the colours of the photographic image and the actual colours of the subject matter of the Photographs if any such discrepancy arises by virtue of technical deficiencies in the film or digital processes. All digital files supplied are for visual guidance only. It is the Client's responsibility to prepare and, if necessary, modify any digitally supplied Photographs to an acceptably suitable standard of colour accuracy and image quality, to which they will subsequently faithfully and accurately record when printed or used in any form of electronic presentation. The Photographer shall not in any circumstances be liable to the Client for any loss, whether direct or indirect or for loss of profit, occasioned by the failure of any digital Photographs supplied to reproduce acceptably. Image/file colour profiles and file formats may vary on commission. The photographer is in no way responsible for the colour conversion or file conversion unless otherwise stated in the commission agreement.
13. CANCELLATION AND POSTPONEMENT
13.1 If the Client wishes to cancel or postpone the Commission, it must give the Photographer two working days prior written notice of this. If the photographer has already carried out the Commission, he shall be entitled to charge the Fee in full. If the Photographer has not yet carried out the Commission, then (in the event of postponement) he may immediately invoice the Client for the cost of all expenses and materials already incurred by him and shall be entitled to be paid for them in full before completing the commission, and (in the case of cancellation) the Photographer shall be entitled to invoice the client for the cost of all expenses and materials already incurred by him together with a cancellation fee of 75% of the Time Costs element of the Fee, without prejudice to his rights in respect of any breach of contract/agreement.
14. RIGHT TO A CREDIT
14.1 If the License to Use has been marked “Right to a Credit”, the Photographer’s name must be printed on, captioned or in reasonable proximity to all published reproductions of the Photographs.
14.2 The Photographer asserts his statutory right to be identified as the author of the Photographs in the circumstances set out in sections 77-79 of the Copyright, Design and Patents Act 1998 or any amendment or re-enactment thereof.
15. FORCE MAJEURE
15.1 The Photographer shall not be liable for any failure in the performance or completion of any of his obligations caused by factors beyond his reasonable control.
16. WAIVER
16.1 Neither the demand for, nor the acceptance of payment, made under these terms and conditions, nor the failure by the Photographer to enforce any of the terms and conditions at any time, or for any period, will release or exonerate or in any way affect the liability of the Client or be a waiver of these terms and conditions.
17. NOTICES
17.1 Any notice given under these terms and conditions shall be delivered to the address of the other party shown on the original commission agreement and shall be delivered by post, fax or electronic mail. A notice shall be deemed to have been served 48 hours after it was posted (if served by post) or at the time of the fax or electronic transmission (if served by fax or electronic transmission).
18. APPLICABLE LAW
18.1 The laws of England and Wales shall govern this agreement.
19. VARIATION
19.1 These terms and conditions, if varied, will be presented for review in writing. The Photographer reserves the right to amend these terms at any time.