TERMS AND CONDITIONS OF ANTEA PHOTOGRAPHY

 

 

BACKGROUND:

These Terms and Conditions shall apply to the hiring of ANTEA PHOTOGRAPHY or its agents (“the Photographer”).

 

1.            Definitions and Interpretation

               1.1          In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

 

  "Customer" the customer who requires the Photographer’s services subject to these Terms and Conditions;
  "Confidential Information" any information that is commercially or otherwise sensitive or may be reasonably considered to be so;
  "Expenses" costs incurred by the Photographer in direct relation to the provision of his services;
  "Licence" means a exclusive, perpetual, non-transferrable, licence granted by the Photographer to the Customer to use the Selected Photographs for commercial purposes within a Project under Clause 8;
  "Order" the Customer’s initial request to acquire the services of the Photographer as set out in Clause 2 of these Terms and Conditions;
  "Notice of Completion" letter or mail from Photographer which confirms that all work is completed and that the images or photographs may be collected;
  "Photograph" any digital photograph or image taken by the Photographer during the Photo Shoot;
  "Photo Shoot" all stages of the Photographer’s services provided to the Customer including preparation beforehand, the taking of Photographs and the processing of Photographs;
  "Price" the fee payable for the Photo Shoot itself which shall not extend to Selected Photographs;
  "Print" the hardcopy or printed digital photograph or image;
  "Project" means a particular use to which the Customer intends put the Selected Photographs
  "Rejection Fee" a sum agreed in the Invoice which shall be payable by the Customer in the event that the Customer chooses to reject the Photographs entirely;
  "Selected Photographs" the Photographs chosen by the Customer from the proofs made available to them which shall be licensed under these Terms and Conditions.

 


               1.2          Unless the context otherwise requires, each reference in these Terms and Conditions to:

 

  1   “writing”, and any similar expression, includes a reference to any communication effected by electronic similar means;
  2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
  3  “these Terms and Conditions” is a reference to these Terms and Conditions and Schedules as amended or supplemented at the relevant time;
  4 a Clause or paragraph is a reference to a Clause of these Terms and Conditions.
  5  a "Party" or the "Parties" refer to the parties to these Terms and Conditions.

 

               1.3          The headings in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.

               1.4          Words imparting the singular number shall include the plural and vice versa.

               1.5          References to any gender shall include the other gender.

 

2.            Orders

               2.1          When placing an Order the Customer will confirm:-

  1 location;
  2 date;
  3 nature of the photo shoot;
  4 estimated duration;
  5 special requirements;
  6 use of images;

 

 

               2.2          the Photographer will provide a written Quotation to the Customer setting out:-

  1 price;
  2 deposit;
  3 anticipated expenses;
  4 most appropriate storage media;
  5 nature of digital manipulation;
  6 licence fees;
  7 number of printed photographs or images required;
  8 payment terms;
  9 delivery time;
  10 rejection fee.

 

 

               2.3          Either party shall be free to make changes to the Order and Quotation prior to acceptance.

 

               2.4          On acceptance by email, letter or telephone the contract is binding and the Photographer will provide the Customer with an Invoice.

 

3.            Deposit

               3.1          The deposit will be paid within 7 days of receiving the Invoice;

               3.2          No action will be taken by the Photographer until the deposit is received;

               3.3          Subject to Clause 5, the Deposit is non-refundable.

 

4.            Price and Payment

 

               4.1          The Price for the Photo Shoot shall be set out in the Quotation and confirmed in the Invoice.

               4.2          In the event of any unforeseen reasonable expenses the Photographer shall provide the Customer with any additional invoice at the end of the Photo Shoot.

               4.3          In the event that the Customer requires additional Prints or services a new Invoice will be provided and a Deposit received before work commences.

               4.4          The invoice must be paid in full within 7 DAYS of the date of the Notice of Completion email or letter.

               4.5          Interest will accrue at the rate of 10% per annum from the date of invoice on any unpaid balance.

               4.6          Any Licences granted to the Customer under Clause 7 are suspended until payment is made in full.

 

5.            Cancellation and Rescheduling

               5.1          The Customer may cancel or reschedule the Photo Shoot at any time up to 48 hours before the Photo Shoot.  The following shall apply to cancellation or rescheduling:

  1 If the Customer cancels the Photo Shoot more than 28 days before the start date the Photographer shall issue a full refund of all sums paid, including the Deposit.
  2  If the Customer reschedules the Photo Shoot more than 28 days before the start date the Photographer shall retain all sums paid, including the Deposit and shall deduct all such sums from any balance payable on the rescheduled Photo Shoot.
  3 If the Customer cancels the Photo Shoot less than 28 days but more than 14 days before the start date the Photographer shall refund any sums paid less the Deposit.
  4  If the Customer reschedules the Photo Shoot less than 28 days but more than 14 days before the start date the Photographer shall retain any sums paid less the Deposit and shall deduct all such sums from any balance payable on the rescheduled Photo Shoot.  A new Deposit shall be payable on the rescheduled Photo Shoot.
  5   If the Customer cancels the Photo Shoot less than 14 days before the start date the Photographer shall retain all sums paid and any outstanding sums shall become immediately payable.  No refund shall be issued.
  6  If the Customer reschedules the Photo Shoot less than 14 days before the start date the Photographer shall retain all sums paid and any outstanding sums shall become immediately payable.  No refund shall be issued and no sums paid will count toward the fees and Deposit payable on the rescheduled Photo Shoot.

 

               5.2          The Photographer may cancel the Photo Shoot at any time prior to the start date and shall refund all sums paid, including the Deposit.

               5.3          In the event that adverse climate or other environmental conditions prevent the Photo Shoot taking place, the Photographer will make reasonable efforts to reschedule as soon as possible after the originally agreed time. What constitute adverse climate or environmental conditions are at the sole discretion of the Photographer.

 

6.            Images

               6.1          All photographs will be provided in a digital format and in the most appropriate storage media;

               6.2          Where a photographic image requires manipulation or alteration the delivery time may be extended by a reasonable amount of time in the circumstances;

               6.3          Any photographic image used to sell or market property will NOT be altered in any way so as to misrepresent the property concerned;

 

7.            Photography

               7.1          The Customer shall specify the subject matter of the Photo Shoot and shall, prior to the date of the Photo Shoot, specify any particular Photographs or compositions they require.

               7.2          The Photographer has absolute discretion in selecting equipment and deciding all artistic factors.

               7.3          The Photographer will take as many Photographs as he deems.

               7.4          The Photographer will make proofs available to the Customer to enable the Customer to select the Photographs they require.

               7.5          The Photographer shall deliver the Selected Photographs to the Customer in the format(s) agreed at the time of selection, subject to the terms of the Licence granted in Clause 8.

               7.6          The Customer shall have a period of 14 days after delivery of the Selected Photographs to notify the Photographer of any discrepancies with their choices or significant flaws in the Selected Photographs which were not visible in the proofs.  The Photographer shall undertake any necessary remedial action which is possible upon being informed of any such problems.

               7.7          Subject to the provisions of sub-Clause 7.6 there is no right to reject the Photographs on the basis of style or composition unless a Rejection Fee has been agreed at the time of Ordering.

               7.8          The Photographer shall be free to sub-contract any of his obligations under these Terms and Conditions.

 

8.            Copyright and Licensing

               8.1          The Copyright in the Photographs will remain the property of the Photographer.  Subject to a written agreement to the contrary nothing in these Terms and Conditions shall vest any ownership rights in the Customer.;

               8.2          Any Licence shall become effective upon delivery of the Selected Photographs to the Customer and, subject to the provisions of sub-Clauses 4.6 and 8.11, shall continue from that date for the duration of copyright protection under Section 12 of the Copyright Designs and Patents Act 1988).

               8.3          The Photographer’s name must be shown on or in reasonable proximity to all reproductions of the Images or Photographs which are published by the Customer.  The Photographer reserves the moral right to be credited as the author of any published Photographs or Prints under Sections 77-79 of the Copyright Designs and Patents Act 1988.  The Photographer may waive this requirement at any time by giving written notice to the Customer.

               8.4          The Licence shall apply only to the Selected Photographs and shall not extend to proofs or any other material provided by the Photographer to the Customer.

               8.5          The Customer shall have the right to use the Photographs for personal purposes only.  Commercial use of any kind of the Photographs is prohibited without the prior written permission of the Photographer.

               8.6          The Customer shall be permitted to use the Selected Photographs in any Project subject to the following limitations:

  1 The Selected Photographs may not be used for any purposes which are unlawful or which may reasonably detriment the reputation of the Photographer;
  2 The Selected Photographs may not be used to form any part of a logo, service mark, trade mark or any other form of business or brand identity;
  3 The Selected Photographs may not count for any more than 15% of the value of the Project in which they are used;
  4  If applied to printed matter of any form the Selected Photographs may not occupy any more than 50% of the printed surface area; and
  5  Where the Selected Photographs are to be published on a website of any kind the Customer must take reasonable steps to limit the ease of copying and downloading the same.

 

               8.7          The Customer may not use any photograph in a manner which distorts, mutilates, defames or damages the reputation of the Photographer

               8.8          The Customer may not sub-licence the Photographs without the prior written permission of the Photographer.

               8.9          The Photographer reserves the right to use the Photographs in any advertising or promotional material provided such material is only related to the Photographer or his services.

               8.10       The Licence granted to the Customer shall be automatically revoked if the Customer breaches any of its terms.

 

9.            Insurance, Liability and Indemnity

               9.1          The Photographer shall have in place public liability insurance with a limit of indemnity of £2,000,000.

               9.2          The Photographer cannot guarantee that all Photographs delivered in a digital format are free from viruses and errors and accepts no liability for any loss or damage which may result from the same.

               9.3          The Photographer shall indemnify and hold harmless the Customer against any costs, liability, damages, loss, claims, threatened claims or proceedings brought by any third party arising out of any failure by the Photographer to obtain any clearances for which he was responsible in respect of third party copyright works, trade marks, designs or other intellectual property provided that:

  1 It is agreed at the time of Ordering that the Photographer shall be responsible for obtaining such clearances.
  2 The Photographer has full control of any proceedings or negotiations in connection with any such claim or threatened claim;
  3 The Customer shall at their own cost give the Photographer all reasonable assistance for the purpose of any such proceedings or negotiations;
  4 Except pursuant to a final award, the Customer shall not pay or accept any such claim or threatened claim, or compromise any such proceedings or negotiations, without the consent of the Photographer, such consent not to be unreasonably withheld;
  5 The Customer will not make any act or omission which could affect any policy of insurance or insurance cover which they may have in relation to any such claim or threatened claim, and the indemnity provided by the Photographer under this sub-Clause 9.4 shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
  6 The Photographer shall be entitled to, and the Customer shall accordingly account to the Photographer for, all damages and costs (if any) awarded against any other party or agreed by the Customer (which agreement shall not be unreasonably withheld) to be paid by any other party in respect of any such claim or threatened claim; and
  7 The Photographer shall be entitled to require the Customer to take such steps as the Photographer may reasonably require to reduce any loss of the Customer.

 

 

10.         Confidentiality

               10.1       Each Party undertakes that, subject to sub-Clause 10.2 or as authorised in  writing by the other Party, it shall, at all times during the continuance of the Agreement and for 6 years after its termination:

  1 keep confidential all Confidential Information;
  2 not disclose any Confidential Information to any other party;
  3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
  4 not make any copies of, record in any way or part with possession of any Confidential Information; and
  5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 10.1.1 to 10.1.4 above.

 

               10.2       Either Party may:

  1 disclose any Confidential Information to:
   

10.2.1.1     any sub-contractor or supplier of that Party;

10.2.1.2     any governmental or other authority or regulatory body; or

10.2.1.3     any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;

    to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law.  In each case that Party will inform the relevant party that the Confidential Information is confidential and (unless sub-Clause 10.2.1.2 applies) obtain and submit to the other Party a written confidentiality undertaking from the that party. Such undertaking to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
  2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information which is not public knowledge.

 

               10.3       The provisions of this Clause 10 shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.

 

11.         Force Majeure

The Photographer shall not be liable for any failure or delay which results from any cause that is beyond his reasonable control.

 

12.         Data Protection

The Photographer will not share the Customer’s personal data with any third parties for any reasons without the prior consent of the Customer.  Such data will only be collected, processed and held in accordance with the Photographer’s rights and obligations arising under the provisions and principles of the Data Protection Act 1998.

 

13.         No Waiver

No failure by either the Photographer or the Customer to enforce the performance of any provision in these Terms and Conditions shall constitute a waiver of the right to subsequently enforce that provision or any other provision of these Terms and Conditions.  Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

 

14.         Severance

If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.

 

15.         Law and Jurisdiction

               15.1       These Terms and Conditions shall be governed by the laws of England and Wales.

               15.2       Any dispute between the Parties relating to these Terms and Conditions shall fall within the jurisdiction of the courts of England and Wales.

  


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