Terms and Conditions
Photographers’ Agents Standard Terms & Conditions of Business
1. APPLICATION OF TERMS
1.1 These terms and conditions will:
1.1.1 apply to all Assignments undertaken by Agent’s photographers for Client and to all
Usage Licences or extended and/or additional Usage Licences relating to such
Assignments; and
1.1.2 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
“Agent” means Photographer’s appointed agent whose details are set out in the Estimate
and invoice(s) for an Assignment.
“Assignment” means a commission by Client of Photographer for provision of
Photographer’s services at a shoot for the purpose of creating the Material and negotiated
through Agent and whether invoiced to Client by Agent or by Photographer.
“Advertiser” means any client of Client for whose benefit or use material is commissioned.
“Client” is the party commissioning a Photographer via Agent and includes Client’s
affiliates, assignees, and successors in title.
“Estimate” means any email or other document electronic or otherwise created by Agent
and setting out the Fee and expenses for any Assignment along with information as to
Usage Licences.
“Fee” means Photographer’s fees as set out in the Estimate.
“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.
“Material” means all photographic material created by Photographer pursuant to an
Assignment and includes but is not limited to transparencies, negatives, prints, digital files
or any other type of physical or electronic material recording either still or moving
images.
“Shoot Duration” means the number of confirmed days of a shoot whether undertaken
consecutively or in separate parts and includes all shoot, 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 any day that is a bank
holiday in England.
3. ESTIMATES
3.1 Estimates provided by Agent are based upon the information provided by Client in
advance of preparing the Estimate.
3.2. Changes to the requirements for an Assignment before or during a shoot may increase
the Fee and expenses.
3.3 Estimates shall specify 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.
3.4 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.
3.5 Unless otherwise agreed in writing 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 photographers’ day shoot fee.
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 Photographer will take account of Client’s reasonable instructions in
respect of the shoot brief.
4.3 If Client is not present during the shoot then Photographer’s interpretation of the brief
shall be deemed acceptable to Client.
5. OVERTIME AND ANTISOCIAL HOURS
5.1 A normal day is up to 9 hours (including 1 hour for lunch) between 9am and 6pm on any
Working Day.
5.2 Any hours worked outside a normal day (“Antisocial Hours”) will incur additional
overtime fees for Photographer, crew and facilities.
5.3 Photographer’s additional hourly overtime fees are:
5.3.1 Between 6pm and 10pm on a Working Day – One ninth of 1.5 x Photographer’s agreed
daily fee including usage; and
5.3.2 Between 10pm and 9am on any day and at any other time on a non-Working Day –
One ninth of 2 x Photographer’s agreed daily fee including usage.
5.4 Additional fees for crew, facilities and any other third parties required to work
Antisocial Hours shall be as set out in their standard terms or otherwise negotiated.
6. CANCELLATION OF SHOOT
6.1 If a confirmed shoot is cancelled or postponed for reasons outside the control of
Photographer (including unsuitable weather / light), Photographer reserves the right to
charge a cancellation fee at the following rates together with all incurred expenses:
On Shoot Duration of two days or less:
6.1.1 cancellation on 2 Working Days notice or less – 100% of Fee + all expenses; or
6.1.2 on 3 to 6 Working Days notice – 75% of Fee + all expenses; or
6.1.3 on more than 6 Working Days notice – 50% of Fee + all expenses.
On Shoot Duration in excess of 2 days and on notice equivalent to:
6.1.4 the Shoot Duration or less -100% of Fee + all expenses; or
6.1.5 more than the Shoot Duration but not more than twice the Shoot Duration – 75% of
Fee + all expenses; or
6.1.6 more than twice the Shoot Duration – 25% of Fee + all expenses.
7. ACCEPTANCE & DELIVERY
7.1 Following completion of the shoot Photographer will deliver the Material to Client as
soon as reasonably practicable and in the agreed format to enable Client to select the
Licensed Images.
7.2 Subject to any previously agreed deadlines for post-production work Photographer will
carry out any such work required as soon as reasonably practicable but cannot guarantee
urgent turnaround.
7.3 Unless expressly agreed in writing between the parties Client shall not be entitled to
reject the Material on the basis of style or composition.
8. STORAGE OF MATERIAL
8.1 Client shall ensure that he takes appropriate steps to keep safe a high resolution
digital copy of all Material for the duration of the Usage Licence. For the avoidance of
doubt CD/DVD archives are not deemed safe storage media. Neither Photographer nor
Agent will be responsible for archiving any Material unless by prior written agreement.
8.2 Save for the purposes of the Usage Licence 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 Client, without the written permission of Photographer.
8.3 Upon publication of the Licensed Images or any of them and on Photographer’s request
Client shall supply to 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.
9. COPYRIGHT & USAGE LICENCES
9.1 The entire copyright and all similar rights throughout the world in all the Material and
ownership of all physical materials created by or for Photographer shall vest in and be
retained by Photographer at all times.
9.2 Client is responsible for informing Advertiser of the extent and limitations of all Usage
Licences.
9.3 Upon payment in full of both the Fee and expenses for an Assignment Photographer
grants to Client the right to use the Licensed Images on the express terms of the Usage
Licence. No use may be made before payment in full without the Photographer’s express
agreement in writing.
9.4 Provided that Client has paid in full all invoices relating to the Assignment the period
of use specified in the Usage Licence commences from the date of first use or 6 months
after the shoot date, whichever is sooner (unless otherwise agreed).
9.5 Usage of the Licensed Images is limited to use of such images as provided by
Photographer and Client shall not manipulate any Licensed Photograph or make use of only
part of any individual image without the prior written permission of Photographer.
9.6 Client may only sub-license the right to use the Licensed Images to the disclosed
Advertiser as agreed by Agent and strictly on the terms of the Usage Licence.
9.7 Neither Client nor Advertiser may use the Licensed Images in relation to any additional
products or services not specified in the Usage Licence.
9.8 Any licence to use the Licensed Images shall automatically be revoked if payment in
full of both the Fee and expenses for an Assignment is not received by the due date
specified in the relevant invoices or if the Client or Advertiser becomes insolvent or is put
into receivership or is subject to any of the matters set out in clause 20.1.2 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
Agent in advance.
10.2 Any estimates of additional or extended usage licence fees provided to Client are
valid for a period of three months from the date of the estimate only (unless otherwise
notified in writing).
10.3 Client acknowledges that such estimates do not include provision for any third party
rights which are the responsibility of Client pursuant to clause 12 below.
10.4 Client shall procure that Advertiser requests any necessary extended or additional
usage licence(s).
10.5 Any extended or additional use made without permission shall attract an enhanced
fee at the maximum percentage stated in the Association of Photographers’ re-usage guidelines.
11. EXCLUSIVITY
11.1 All Usage Licences granted by Photographer to Client shall be exclusive licences
unless otherwise agreed in writing.
11.2 Regardless of the period of use of any Usage Licence(s) or extension thereof
Photographer undertakes not, for a period of 3 years from the date of the relevant shoot,
to grant any other licence in respect of the Material to any third party.
11.3 After expiry of the exclusivity period Photographer shall make such use of the
Material including the Licensed Images as he sees fit.
11.4 Nothing in this clause shall prevent Photographer at any time from using the Material,
whether commercial, test or speculative (images shot for presentation/pitch/awards) and
whether published or not, in any form and in any manner worldwide for the purpose of
promoting his services and those of Agent. Photographer reserves the right to use the
Material for this purpose with or without the Advertiser’s branding.
12. THIRD PARTY RIGHTS
12.1 Engagements of third party suppliers, including models, are subject to such terms
and conditions as those parties may require which shall be available on request.
12.2 Estimated model fees cover modelling time only and Client shall be responsible for
clearing model usage unless otherwise stated on the Estimate.
12.3 Items created specifically for the shoot shall remain the property of their creator
unless agreed otherwise.
12.4 Photographer shall not be responsible for obtaining any clearances in respect of third
party copyright works, trade marks, 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. CREDITS
13.1 In respect of all editorial uses and otherwise as additionally stated in the Estimate
Client shall procure that Photographer’s name is printed on or in reasonable proximity to
all published reproductions of the Licensed Images.
14. PAYMENTS
14.1 All expenses and production costs must be paid in advance of the shoot unless
otherwise agreed in writing and such invoices are due on presentation.
14.2 All other invoices must be paid within 30 days of the date of issue. 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 the
date payment is made.
14.3 If there is a delay of one month or more between agreed pre-production work and
the shoot, Photographer reserves the right to invoice Client for the pre-production
element of the Fee and for any expenses already incurred by Photographer.
14.4 Usage Licence and any third party fees negotiated by Photographer are payable
regardless of whether Licensed Images are in fact used by Client or Advertiser.
14.5 All payments are due in pounds sterling unless expressly stated otherwise.
15. EXPENSES
15.1 All expenses figures provided in advance of a shoot are estimates only and Client
should allow a minimum 10% contingency budget in all cases. All estimated costs are
stated exclusive of VAT.
15.2 Photographer will endeavour to work within the agreed cost estimate, but individual
costs within the Estimate may vary at his/her discretion to enable the most effective
realisation of the brief.
15.3 Receipts for expenses can only be provided if requested prior to shoot confirmation.
Provision of receipts will incur an accountancy charge of 1.5% of total costs and fees
incurred in respect of the Assignment subject to a minimum charge of £250 and a
maximum of £600.
15.4 Where extra expenses or time are incurred by Photographer as a result of alterations
to the original brief by Client, or otherwise at its request, Client shall be liable to pay
such extra expenses and additional fees at Photographer’s normal rate.
16. RETURN OF MATERIALS
16.1 Within 30 days of expiry of any Usage Licence the Material must be returned to
Photographer in good condition and any digital files stored by Client and Advertiser must
be deleted.
17. INDEMNITY
17.1 Client shall indemnify Photographer and Agent and keep them and their respective
officers and employees indemnified on a continuing basis against all liabilities, claims,
costs, damages and expenses claimed or incurred (including reasonable and direct 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 Client to obtain third party
clearances or arising out of use of the Material by Client or Advertiser outside of the Usage
Licence or otherwise as a result of any breach by Client or Advertiser of these terms.
18. EXTENT OF LIABILITY
18.1 Photographer and Agent shall not be liable to 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 Photographer, Agent, Photographer’s employees, agents or sub-contractors
or otherwise) which arise out of or in connection with the shoot.
18.2 Photographer’s and Agent’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 Photographer in
relation to the relevant Assignment.
18.3 Notwithstanding the above, nothing in these terms excludes or limits the liability of
Photographer or Agent for death or personal injury caused by Agent or 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.
18.4 Photographer and Agent hereby disclaim 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.
18.5 Agent shall not be responsible for the acts or omissions of Photographer.
19. CONFIDENTIALITY
19.1 Photographer and Agent 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
Photographer and/or Agent to carry out their obligations in relation to the Assignment.
19.2 It shall be the sole responsibility of Client to arrange for any third party involved in
the Assignment to enter into any confidentiality agreement.
19.3 Neither Photographer nor Agent will be liable for any breach of confidentiality by any
third party.
20. TERMINATION
20.1 Either party will be entitled to terminate these Terms immediately by giving written
notice to the other if the other party:
20.1.1 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
20.1.2 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.
21. EFFECTS OF TERMINATION
21.1 On termination or expiry of these Terms for whatever reason:
21.1.1 Client shall pay all sums due and owing the date of which will be automatically
accelerated to the date of termination.
21.1.2 The provisions of Clauses 2, 3.3, 8, 9, 10, 11, 12, 13, 16, 17, 18 and 19 shall
survive expiry or termination.
21.2 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.
22. FORCE MAJEURE
22.1 Neither Photographer nor Agent shall be liable for any failure or delay in the
performance of any of such party’s obligations under these Terms caused by any
circumstances beyond such party’s reasonable control.
23. GENERAL
23.1 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.
23.2 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).
23.3 Notices: Any notice under these Terms shall be duly given if: (a) delivered personally;
or (b) sent by pre-paid post, in which case it shall be deemed to have been received 48
hours after posting; or (c) sent by fax, in which case it shall be deemed to have been
received when transmitted.
23.4 Entire Agreement and Variation: These Terms and the Estimate constitute the entire
agreement between the parties with respect to their subject matter.
23.5 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.
23.6 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.
23.7 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.
23.8 Law and Jurisdiction: These Terms are governed by English law and the parties hereby
irrevocably submit to the non-exclusive jurisdiction of the English Courts.
