DEFINITIONS: For the purpose of this agreement:-
“Photographer” means The Hill Organization Ltd. (trading as MarketingShotz) and shall where the context allows include any assignees, sub-licensees and successors in title
“Client” means the person or entity commissioning the Photographer, whether a direct client of the Photographer or an agency or an advertiser or otherwise, and the expression “the Client” shall where the context allows include its respective assignees, sub-licensees and successors in title.
“Photographs” means all photographic material furnished by the Photographer, whether electronic files, transparencies, negatives, prints or any other type of physical or electronic media.
“Commission” means the commission to undertake agreed work on behalf of the Client by the Photographer in consideration of the Fee. The Commission will be agreed in writing in the form of a Shoot Plan between the Parties before any work is commenced.
“Fee” means the fee for the carrying out of the Commission by the Photographer and for the grant of the License.
“License” means the License to Use the Photographs granted by the Photographer to the Client following payment of the Fee.
“Parties” means Photographer and Client.
COMMISSION: The Client engages the Photographer to carry out the Commission for the Fee and in consideration of the payment of the Fee the Photographer agrees to grant to the Client a License to Use the Photographs, on the terms and conditions set out herein. Commissions are solely accepted on the basis that these Terms and Conditions are the only ones applicable.
USE: The Photographer grants to the Client a ‘Licence to Use’ the Photographs from the date of payment of the Fee in full and for the purposes set out in the written or verbal Commission. No use may be made of the Photographs before payment of the Fee is made in full, unless specific written permission to do so is obtained in advance from the Photographer.
The License to Use the Photographs is only granted to the Client and the License shall not be assigned to any third party without the Photographers express prior written permission. Accordingly, 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, including offering the Photographs for sale either directly or via sub-licensing through any third party.
Permission to use the Photographs for purposes outside the terms of the license may be granted at the Photographer’s sole discretion upon payment of a further fee, which must be agreed between the parties and paid in full before such further use.
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, competition entry or otherwise promoting his work.
EXPENSES: Where extra expenses or time are incurred by the Photographer as a result of alterations or additions to the original Commission by the Client, or otherwise at their request, the Client shall pay such extra expenses or fees to the Photographer.
CLEARANCES: The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed in writing as part of the Commission. 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 or inability to obtain such clearances.
DELIVERY: The Photographer shall deliver the Photographs (excluding the negatives / RAW files) by the delivery date stated. Time for delivery shall not be of the essence of the contract. 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 whatsoever.
COPYRIGHT & OWNERSHIP OF MATERIALS: The entire copyright in the Photographs is retained by the Photographer at all times throughout the world. Title to all Photographs remains the property of the Photographer. If and when the Licence has expired the Photographs must not be used until a Licence extension has been agreed and paid for.
If the Client orders prints of the Photographs, the Photographer will supply them at an agreed price. The Photographer will however at all times retain full Copyright. Title in the prints will only pass when the Client has paid all sums due to the Photographer in full. The Client must not copy, digitize or reproduce the prints in any way nor assist or permit any third party to do so.
CANCELLATION & POSTPONEMENT: A booking is considered firm from the date the booking fee is paid and accordingly the Photographer will charge a fee for cancellation or postponement. If the Client wishes to either cancel or postpone the Commission, the Client must give written notice of this to the Photographer. 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 he may immediately invoice the Client for the cost of all expenses and materials (plus VAT where applicable) already incurred by him together with a cancellation fee of 50% of the Fee, without prejudice to his rights in respect of any breach of contract.
CONFIDENTIALITY: The Parties will keep confidential and will not disclose to any third parties or make use of material or information communicated to them in confidence, save as may be reasonably necessary to enable the Parties to carry out their obligations in relation to the Commission or as required by law.
PAYMENT: Payment by the Client of the Fee for the Photographs is due within the terms stated on the quotation. If the Fee is not paid on or before the date payment is due then interest will accrue on a daily rate basis at the rate of 4% per annum over the base rate for the time being of HSBC Bank Plc, calculated from the due date of the relevant invoice until the date actual payment is received in cleared funds. Any expenses or costs reasonably incurred by the Photographer in securing payment of late invoices shall be invoiced to the Client and become due immediately.
REJECTION: Unless a rejection fee has been agreed in advance by the Parties, 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 or actual discrepancy between the colours of the photographic image and the actual colours of the subject matter of the Photographs.
Unless the Photographer is specifically commissioned to do so, it is the Client’s responsibility to prepare and if necessary modify any digitally supplied Photographs to meet the Client’s needs. Images are normally supplied as sRGB IEC colour profile jpgs, unless the Client requests another format as part of the Commission.
RIGHT TO A CREDIT: If the License has been marked ”Right to a Credit”, ‘Credit: www.marketingshotz.com’ must be printed on, or in reasonable proximity to, all published reproductions of the Photographs – or in such a way as is customary in the publication. Unless otherwise agreed in writing if any Photograph published or reproduced by the Client (or with the Client’s permission) omits the credit line specified any fee paid or payable by the Client in respect of the Commission shall be subject to an increase specified by the Photographer, of not less than 25% of the Fee for the Commission.
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.
FORCE MAJEURE: Neither Party shall be liable for any failure in the performance of any obligations caused by factors beyond their reasonable control.
WAIVER: 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 any liability of the Client or be a waiver of these terms and conditions.
NOTICES: Any notice given under these terms and conditions shall be delivered to the address of the other party and shall be delivered by ordinary first class post or other postal service. A notice shall be deemed to have been served 24 hours after delivery.
APPLICABLE LAW: This agreement shall be governed by and construed in accordance with the laws of England and Wales.
VARIATION: Photographer reserves the right to amend these Terms and Conditions without prior notice. Any revisions will be posted on this page.
Last Updated: January 1st 2017