TERMS AND CONDITIONS

1. DEFINITIONS

“Terms” means these terms and conditions.

“Client” (including, where applicable, their affiliates, assignees, and successors in title) is the party commissioning Paul Thompson or such other person(s) specified by Paul Thompson in the Estimate and invoice(s) for an Assignment (hereinafter “Photographer”).

“Assignment” means the Client commissioning the Photographer’s services for the purpose of creating the Material.

“Material” means all photographic material created by the Photographer pursuant to an Assignment and includes but is not limited to transparencies, negatives, prints, still or moving images, digital files, or any other physical or electronic material.

“Principal” means any client of the Client for whose benefit or use the Material is commissioned by the Client.

“Estimate” means any email or other document electronic or otherwise created by the Photographer and setting out the Fee and Expenses for any Assignment along with information as to Usage

Licences.

“Fee” means the Photographer’s fees as set out in the Estimate.

“Expenses” means any costs necessary to produce the Material aside from Fee.

“Licensed Images” means the still and/or moving images selected from the Material and as specified in the Estimate as to be licensed for use in accordance with these Terms.

“Shoot” refers to all steps taken by Photographer to produce Material for the Client pursuant to an Assignment.

“Shoot Duration” means the number of confirmed days of a Shoot whether undertaken consecutively or in separate parts and includes all shooting, travel, recce, preparation or test days.

“Usage Licence” means the licence to use the Licensed Images as set out in clause 3.3 and clause 9 below.

“Working Day” means a day that is not a Saturday or Sunday or a Bank Holiday in England.

“B.U.R.” means Base Usage Rate and is the figure by reference to which additional usage fees, in addition to the usage fees stated on the Photographer's original Estimate as accepted by the Client, are established.

2. APPLICATION

2.1. These Terms will:

2.1.1. 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

2.1.2. prevail over any inconsistent terms or conditions contained or referred to in Client’s purchase order, order confirmation, acceptance of Estimate, or specification or other document supplied by Client, or implied by trade custom, law, practice or course of dealing.

3. ESTIMATES

3.1. Estimates provided by the Photographer are based upon the information provided by the Client in advance of preparing them.

3.2. Estimates shall specify the 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.

3.3. 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 licensed usage and all technical specifications for the Licensed Images.

3.4. Changes to the requirements from an Assignment before or during a Shoot may increase the Fee and Expenses.

3.5. Unless otherwise agreed in writing, the Client’s agreement of Shoot date(s) shall be deemed to be acceptance of the Estimate.

3.6. If no B.U.R. has been stated, it will be equivalent to the Photographer's Fee.

4. CONDUCT OF THE SHOOT

4.1. The Shoot will be arranged on the 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, the Photographer’s interpretation of the brief shall be deemed acceptable.

5. ACCEPTANCE & DELIVERY

5.1. Following completion of the Shoot the Photographer will deliver the Material to the Client as soon as reasonably practicable and in the agreed format to enable the Client to select the Licensed Images.

5.2. Subject to any previously agreed deadlines for post-production work the Photographer will carry out any such work required as soon as reasonably practicable but cannot guarantee urgent turnaround.

5.3. Unless expressly agreed in writing, the Client shall not be entitled to reject the Material on the basis of style or composition.

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), Client shall pay all Expenses incurred by Photographer up to such time.

6.2. In addition, the Photographer reserves the right to charge a cancellation fee at the following rates. On notice equivalent to:

6.2.1. the Shoot Duration or less: - up to 100% of Fee; OR

6.2.2. more than the Shoot Duration but not more than twice the Shoot Duration – up to 75% of Fee; OR

6.2.3. more than twice the Shoot Duration – up to 50% of Fee.

7. STORAGE OF MATERIAL

7.1. The Client shall ensure appropriate steps to keep safe an exact 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. Except for the purposes of the Usage Licence including clause 7.1 above, the Material may not be stored in any electronic medium or transmitted to any third party, including for the avoidance of doubt any associated or branch office of the Client, without the written permission of the Photographer.

7.3. Upon publication of any Licensed Images and on the Photographer’s request the Client shall supply to the Photographer free of charge good quality digital files or PDF files or hard copies of the Licensed Images in the context in which they are published.

8. COPYRIGHT

8.1. The entire copyright and all similar rights throughout the world in all the Material, and ownership of all physical materials created by or for the Photographer, shall vest in and be retained by the Photographer at all times.

8.2. Photographer shall reserve all rights not expressly granted to Client, including the right to use the Material for marketing, promotional, competition and editorial purposes, subject to any embargo or exclusivity period agreed with Client beforehand.

9. USAGE LICENCE

9.1. Upon payment in full of both the Fee and Expenses for an Assignment the Photographer agrees to grant to the Client the right to use the Licensed Images on the express terms of the Usage Licence. The period of use specified in the Usage Licence commences from the date of first use or six months after the Shoot date whichever is sooner, and no use may be made before such payment in full, unless otherwise agreed in writing.

9.2. Usage of the Licensed Images is limited to use of such images as provided by the Photographer. The Client shall not manipulate any Licensed Images or make use of only part of any individual image without the prior written permission of the Photographer.

9.3. The Client may only sub-license the right to use the Licensed Images to the disclosed Principal as agreed and strictly on the terms of the Usage Licence, and the Client is responsible for informing the Principal of the extent and limitations of all Usage Licences.

9.4. In the case of promotional or advertising usage, neither the Client nor the Principal may use the Licensed Images in relation to any additional products or services not specified in the Usage Licence.

9.5. Any licence to use the Licensed Images shall automatically be revoked if payment in full of both the Fee and Expenses for an Assignment are not received by the due date specified in the relevant invoice(s) or if the Client or Principal becomes insolvent or is put into receivership or is subject to any of the matters set out in clause 19.2 below.

10. ADDITIONAL / EXTENDED USAGE

10.1. The Fee is based on the Usage Licence as specified in the Estimate. Any additional or extended use (including for the avoidance of doubt the use of individual still frames from licensed moving image footage) will attract an additional fee, which must be agreed by the Photographer in writing in advance of such use.

10.2. Any estimates of additional or extended usage licence fees provided to the Client are valid for a period of three months from the date of the estimate only (unless otherwise notified in writing).

10.3. The Client acknowledges that such estimates do not include provision for any third party rights, which are the responsibility of the Client pursuant to clause 12 below.

10.4. The Client shall procure that the Principal requests any necessary extended or additional usage licence(s).

10.5. Any extended or additional use made without permission shall attract an additional fee at the maximum percentage stated in the Association of Photographers’ re-usage guidelines.

11. AUTHORSHIP CREDIT

11.1. In respect of all editorial uses and otherwise as additionally stated in the Estimate, the Client shall procure that the Photographer’s name or such other credit information if any set forth on the Usage Licence, is placed on or in reasonable proximity to all published reproductions of the Licensed Images.

11.2. Photographer also asserts his 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.

12. THIRD PARTY RIGHTS

12.1. Engagements of third party suppliers, including but not limited to assistants, stylists and models, are subject to such terms and conditions as those parties may require which shall be made available by the Photographer on request.

12.2. Any items created specifically for the Shoot by third parties shall remain the property of their creator unless agreed otherwise.

12.3. The Photographer shall not be responsible for obtaining any clearances or licences in respect of third party copyright works, trademarks, designs or other intellectual property used in relation to the Assignment or any Usage Licence or extension thereof unless expressly agreed in writing prior to the Shoot.

13. PAYMENTS

13.1. All invoices must be paid on or before the due date on the relevant invoice. The Photographer reserves the right to charge interest on late payments at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from the date payment was due until payment is made.

13.2. If there is a delay of one month or more between agreed pre-production work and the Shoot, the Photographer reserves the right to invoice the Client for the pre-production element of the Fee and for any Expenses already incurred by the Photographer.

13.3. Fee, Expenses and any additional or extended usage fees are payable regardless of whether Licensed Images are in fact used by the Client or the Principal.

13.4. All payments are due in pounds sterling (GBP) unless expressly stated otherwise, and must be made in full with any deductions towards bank charges or similar fees not authorised by the Photographer.

14. EXPENSES

14.1. All Expenses figures provided in advance of a Shoot are estimates only and the Client should allow a minimum 10% contingency budget in all cases.

14.2. The Photographer will endeavour to work within agreed cost estimates, but individual costs within the Estimate may vary at his discretion to enable the most effective realisation of the brief.

14.3. Where extra Expenses or time are incurred by the Photographer as a result of alterations to the original brief by the Client, or otherwise at its request, the Client shall be liable to pay such extra Expenses and additional fees at the Photographer’s normal rate.

15. RETURN OF MATERIALS

15.1. Within 30 days of expiry of any Usage Licence the Material in physical form must be returned to the Photographer in good condition and any digital files stored by the Client and the Principal must be deleted or removed from their premises.

16. INDEMNITY

16.1. The Client indemnifies the Photographer and keep him 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 Principal outside of the Usage Licence or otherwise as a result of any breach by the Client or the Principal of these Terms.

17. LIMITATION OF LIABILITY

17.1. The Photographer shall not be liable to the Client for any loss of profit, contracts, business, revenues or production, or for any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Photographer or his employees, agents or sub contractors or otherwise) which arise out of or in connection with the Assignment.

17.2. The Photographer hereby disclaims any warranties, conditions and other terms 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.

17.3. 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 Fee for the relevant Assignment.

17.4. 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.

18. CONFIDENTIALITY

18.1. The Photographer will keep confidential and will not disclose to any third parties or make use of material or information communicated to them in confidence for the purposes of the Assignment, save as may be reasonably necessary to enable the Photographer to carry out his obligations in relation to the Assignment.

18.2. It shall be the sole responsibility of the Client to arrange for any third party involved in the Assignment to enter into any confidentiality agreement(s).

18.3. The Photographer will not be liable for any breach of confidentiality by any third party.

19. TERMINATION

19.1. Either party will be entitled to terminate these Terms immediately by giving written notice to the other, if the other party:

19.1.1. commits a material breach of these Terms and fails to remedy that breach (if remediable) within 30 days after receipt of written notice requesting its remedy; or

19.1.2. is the subject of a bankruptcy order or becomes insolvent or makes any arrangement or composition with or assignment for the benefit of its creditors or if any of the other party’s assets are the subject of any form of seizure, or the other party goes into liquidation either voluntary (otherwise than for reconstruction or amalgamation) or compulsory, or a receiver or administrator is appointed over the other party’s assets.

20. EFFECTS OF TERMINATION

20.1. On termination or expiry of these Terms for whatever reason:

20.1.1. The Client shall pay all sums due and owing the date of which will be automatically accelerated to the date of termination.

20.1.2. The provisions of clauses 2, 3.3, 7, 8, 9, 10, 11, 12, 15, 16, 17 and 18 shall survive expiry or termination.

20.2. Any termination and/or suspension of these Terms shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party.

21. FORCE MAJEURE

21.1. The Photographer shall not be liable for any failure or delay in the performance of any party’s obligations under these Terms caused by any circumstances beyond such party’s reasonable control.

22. GENERAL

22.1. Waiver: No delay or omission by a party in exercising any right or remedy under these Terms shall operate to impair such right or remedy or be construed as a waiver thereof. Any single or partial exercise of any such right or remedy shall not preclude any further exercise or the exercise of any other right or remedy.

22.2. Assignment/Sub-contracting: Neither party shall be entitled to assign, transfer, delegate or sub-contract the whole or any part of its rights and obligations under these Terms without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

22.3. Entire Agreement and Variation: These Terms and the Estimate constitute the entire agreement between the parties with respect to their subject matter; and shall not be varied except as agreed in writing.

22.4. Severability: If any part of these Terms is found by any court or other competent authority to be invalid, unlawful or unenforceable then such part shall be severed from the Terms and the remainder shall continue to be valid and enforceable to the fullest extent permitted by law.

22.5. Relationship: Nothing in these Terms shall be construed so as to give rise to any agency, joint venture, partnership or relationship of employer and employee between the parties. Photographer acknowledges that he is an independent contractor, and is responsible for his relevant taxes and insurance.

22.6. Third Party Rights: The provisions of these Terms are for the benefit of the parties and are not intended to confer upon any person except the parties any rights or remedies hereunder. No person who is not a party to these Terms shall have any right to enforce any of its terms pursuant to the Contracts (Rights of Third Parties) Act 1999.

22.7. Law and Jurisdiction: These Terms are governed by the laws of England & Wales and subject to the non-exclusive jurisdiction of the courts of England.