TERMS AND CONDITIONS
1. APPLICATION OF TERMS
1.1 These terms and conditions will:
1.1.1 apply to all Assignments undertaken by Myosotis Film & Photography for the Client and to all Usage Licences relating to such Assignments; and
1.1.2 prevail over any inconsistent terms or conditions referred to in the Client’s acceptance of offer, or other documents supplied by the Client, or implied by law, trade custom, practice, or course of dealing.
“Photographer/Videographer” means Roxy van der Post trading as Myosotis Film & Photography;
“Assignment” means a commission by the Client for provision of the Photographer/Videographer’s services;
“Advertiser” means any client of the Client for whose benefit or use the Material is commissioned;
“Client” is the party commissioning the Photographer/Videographer and includes the Client’s employees;
“Proposal” means any email or other document electronic or otherwise created by the Photographer/Videographer and setting out the Fee and expenses for any Assignment;
“Fee” means the Photographer/Videographer’s fees as set out in the Proposal;
“Licensed Images” means the still and/or moving images selected from the Material and as specified in the Contract Agreement as to be licensed for use in accordance with these Terms;
“Material” means all photographic and video material created by the Photographer/Videographer for an Assignment and includes but is not limited to prints, digital files or any other type of physical or electronic recording of 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, and test days;
“Usage Licence” means the licence to use the Licensed Images as set out in clause 9 below;
“Working Day” means a day that is not a Saturday, Sunday or Bank Holiday.
3.1 Proposals provided by the Photographer/Videographer are based upon the information provided by the Client in advance of preparing the Proposal;
3.2 Changes to the requirements for an Assignment before or during a shoot may increase the Fee and expenses;
3.3 Proposals 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. These shall be the terms of the Usage Licence unless otherwise agreed in writing. The Client is responsible for checking the Proposal 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;
3.4 Unless otherwise agreed in writing, the Client’s agreement of shoot date(s) shall be deemed to be acceptance of the Proposal;
3.4 The Client shall pay a non-refundable* retainer within seven (7) days of signing the Contract Agreement. Photographer/Videographer agrees to hold the shoot date and commence any necessary preparations.
*non-refundable except in the case of Force Majeure as per clause 22
4. CONDUCT OF THE SHOOT
4.1 It is understood that The Photographer/Videographer is the exclusive, official Photographer/Videographer retained to perform photographic and video services requested on this Contract, unless otherwise agreed in writing;
4.2 The shoot will be arranged on date(s) mutually agreed between the Parties;
4.3 During the shoot the Photographer/Videographer will take account of the Client’s reasonable instructions in respect of the shoot brief;
4.4 The Client shall assist and cooperate with the Photographer/Videographer in obtaining the desired still or moving images. The Photographer/Videographer shall not be responsible for images not captured as a result of Client’s failure to provide reasonable assistance or cooperation. The Client will be respectful to the Photographer/Videographer and all parties being photographed or filmed. The Photographer/Videographer has the right to end the session, without refund, if there is any lack of cooperation or respect;
4.5 If the Client is not present during the shoot then the Photographer/Videographer’s interpretation of the brief shall be deemed acceptable to the Client.
5. OVERTIME AND ANTISOCIAL HOURS
5.1 A normal day is up to 8 hours - including 1 hour for lunch - between 8am and 6pm on any Working Day;
5.2 Any hours worked outside a normal day (“Antisocial Hours”) will incur additional overtime fees for the Photographer/Videographer and any crew or facilities. These will be agreed between the Parties.
6. RESCHEDULING OR CANCELLATION OF SHOOT
6.1 The Photographer/Videographer understands weather, illness, or other reasons may cause the Client to reschedule a session. The Client will not be charged a penalty for rescheduling a session provided at least 48 hours’ notice is given. Client understands that a £50 rescheduling fee will apply in case of a no-show or rescheduling with less than 48 hours’ notice. The Photographer/Videographer may reschedule without penalty;
6.2 If a confirmed shoot is cancelled or postponed for reasons outside the control of the Photographer/Videographer (including unsuitable weather and natural light conditions), the Photographer/Videographer reserves the right to charge a cancellation fee of up to 30% of the full payment.
7. ACCEPTANCE & DELIVERY
7.1 Following completion of the shoot, the Photographer/Videographer will deliver the Material to the Client as digital downloads as soon as reasonably practicable, but cannot guarantee urgent turnaround;
7.2 Digital downloads will be removed after 30 (thirty) days. A fee will be charged if the Client requests access to the digital downloads after this time;
7.3 It is understood that the Photographer/Videographer will not deliver every photograph or video clip taken. Original photographs and video footage are not included, only edited material;
7.4 The Client will have up to 14 (fourteen) days to request reasonable changes to any edited photographs or videos based on the original brief;
7.5 Unless expressly agreed in writing between the Parties, the Client shall not be entitled to reject the Material on the basis of style or composition.
8. STORAGE OF MATERIAL
8.1 The Client shall ensure that they take appropriate steps to keep safe an exact digital copy of all Material supplied for the duration of the Usage Licence. The Photographer/Videographer will not be responsible for archiving any Material unless by prior written agreement with the Client;
8.2 Save for the purposes of the Usage Licence, including clause 8.1 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/Videographer;
8.3 Upon publication of the Licensed Images, the Client shall supply free of charge a high-resolution digital file, PDF file, or good-quality hard copies of the Licensed Images in the context in which they are published if the Photographer/Videographer makes such a request.
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 the Photographer/Videographer shall vest in and be retained by the Photographer/Videographer at all times;
9.2 The Client is responsible for informing the 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, the Photographer/Videographer grants to the Client the right to use the Licensed Images on the express terms of the Usage Licence as outlined in the Contract Agreement. No use may be made before payment in full without the Photographer/Videographer’s express agreement in writing;
9.4 Provided that the 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 (six) months after the shoot date, whichever is sooner (unless otherwise agreed in writing);
9.5 Usage of the Licensed Images is limited to how the images have been provided by the Photographer/Videographer. The Client shall not manipulate any Licensed Photograph or Video or make use of only part of any individual image without the prior written permission of the Photographer/Videographer;
9.6 The Client may only sub-license the right to use the Licensed Images to a disclosed Advertiser as agreed and strictly on the terms of the Usage Licence;
9.7 Neither the Client nor any 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 any Advertiser becomes insolvent, is put into receivership, or 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 Contract Agreement. 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/Videographer in advance;
10.2 Any estimates of additional or extended Usage Licence fees provided to the Client are valid for a period of 3 (three) months from the date of the Proposal 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 any Advertiser requests any necessary extended or additional usage licence(s);
10.5 Any extended or additional use made without permission shall attract an additional fee.
11.1 All Usage Licences granted by the Photographer/Videographer to the Client shall be exclusive to the Client and Advertiser unless otherwise agreed in writing;
11.2 Subject to clause 11.4, the Photographer/Videographer will not grant any other licence in respect of the Material to any third party until 2 years after the shoot or the expiry of the Usage License(s) (whichever is later);
11.3 After expiry of the exclusivity period, the Photographer/Videographer shall make such use of the Material including the Licensed Images as they see fit;
11.4 Nothing in this clause 11 shall prevent the Photographer/Videographer at any time from using the Material, whether commercial, test or speculative, in any form and in any manner worldwide for the purpose of promoting their services. In the case of unpublished Material, the Photographer/Videographer shall first obtain the Client’s consent, such consent not to be unreasonably withheld. The Photographer/Videographer reserves the right to use the Material for this purpose whether or not in the context of the Advertiser’s campaign in which the Material is incorporated.
12. THIRD PARTY RIGHTS
12.1 Engagements of third party suppliers, including models, are subject to terms and conditions as those parties may require. These shall be made available by the Photographer/Videographer on request;
12.2 The Client shall be responsible for obtaining consent from third party suppliers, including models, unless otherwise stated in the Contract Agreement;
12.3 Items created specifically for the shoot shall remain the property of their creator unless agreed otherwise;
12.4 The Photographer/Videographer 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 unless expressly agreed in writing prior to the shoot.
13.1 In respect of all editorial uses and otherwise as stated in the Contract Agreement, the Client shall procure that the Photographer/Videographer’s (company) name is printed on or in reasonable proximity to all published reproductions of the Licensed Images.
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 are due on presentation. The Photographer/Videographer 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, the Photographer/Videographer reserves the right to invoice the Client for the pre-production element of the Fee and for any expenses already incurred by the Photographer/Videographer;
14.4 Usage Licence and any third party fees negotiated by the Photographer/Videographer are payable regardless of whether Licensed Images are in fact used by the Client or the Advertiser;
14.5 The charges are based on Photographer/Videographer’s price list on the date of the Proposal acceptance. Future orders shall be charged at the prices in effect at the time the order is placed;
14.6 All payments are due in Pounds Sterling unless expressly stated otherwise.
15.1 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. All estimated costs are stated exclusive of VAT;
15.2 The Photographer/Videographer will endeavour to work within the agreed cost estimate, but individual costs within the Proposal may vary at their 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;
15.4 Where extra expenses or time are incurred by the Photographer/Videographer as a result of alterations to the original brief by the Client, or otherwise at their request, the Client shall be liable to pay such extra expenses and additional fees at the Photographer/Videographer’s normal rate.
16. RETURN OF MATERIALS
16.1 Within 30 days of expiry of any Usage Licence, the Material must be returned to the Photographer in good condition and any digital files stored by the Client and the Advertiser must be deleted.
17.1 The Client shall compensate the Photographer/Videographer 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 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 Advertiser outside of the Usage Licence or otherwise as a result of any breach by the Client or the Advertiser of these terms.
18. EXTENT OF LIABILITY
18.1 The Photographer/Videographer shall not be liable to the 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 the Photographer/Videographer, sub-contractors or otherwise) which arise out of or in connection with the shoot;
18.2 The Photographer/Videographer’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 the Photographer/Videographer in relation to the relevant Assignment;
18.3 Notwithstanding the above, nothing in these terms excludes or limits the liability of the Photographer/Videographer for death or personal injury caused by the Photographer/Videographer’s negligence or that of their employees or sub-contractors, for any fraudulent statement or act or for any matter which it would be illegal to exclude;
18.4 The Photographer/Videographer hereby disclaims 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.
19.1 The Photographer/Videographer 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/Videographer to carry out their obligations in relation to the Assignment;
19.2 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;
19.3 The Photographer/Videographer will not be liable for any breach of confidentiality by any third party.
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 The 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 The Photographer/Videographer shall not 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.
23.1 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 email, in which case it shall be deemed to have been received when sent;
23.4 Entire Agreement and Variation: These Terms and the Contract Agreement 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 the laws of England & Wales and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of England & Wales.
The Association of Photographers Last updated May 2021