Terms & Conditions of Commissioning and Use of Images (short version)
All copyright remains with Claire Borley unless agreed otherwise.
Use of images is very tricky to understand however I can supply you with a licence so you can see in black and white what you can do with the images (a) 1 use only in the Uk or (b) as many uses as you like throughout the world. As you can imagine this terms of use is reflected in the prices.
I should get paid by you before you receive the photos – bit like in a shop – however it tends to work the other way round since the pictures are usually wanted urgently and so I trust you’ll pay me as soon as you get the invoice. I do give you 30 days grace but would appreciate if you don’t sit on it for months and months – I need to survive too.
Commissioned pictures may be used by me for different forms of promotional advertisng. Although if you let me know you don’t want your photo used I’ll try and make sure I don’t.
Terms & Conditions of Commissioning and Use of Images (long version)
1. Definitions
In this Agreement the terms: (a) "image" includes a digital image, digital scan, photograph, transparency, negative, design, artwork, painting, montage drawing, engraving or any other item which may be offered for the purposes of reproduction: (b) "reproduction" includes any form of publication or copying of the whole or part of any image and whether or not altered by printing, photography, slide projection (whether or not to an audience) xerography, artist's reference, artist's illustration, layout or presentation, electronic or mechanical reproduction or storage by any other means (c) "the Client" shall mean the person/organisation named in the formal quotation to whom or to which Claire Borley has agreed to provide Photography Services whether or not the Client is acting for a third party (d) "Photography Services" means the scope of work agreed between Clare Borley and the Client and confirmed in writing and the images to be delivered to the Client pursuant to such work.
2. Scope
(a) These terms and the formal quotation shall constitute the contract between Claire Borley and the Client (the "Agreement") and these terms are deemed to be accepted by the Client by virtue of its written acceptance of the formal quotation in respect of Photography Services.
(b) This Agreement applies to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any acceptance, purchase order, confirmation of order, specification or other document).
3. Copyright
(a) Subject to clause 4, Claire Borley grants to the Client a licence to publish, reproduce, have reproduced on its behalf the images delivered to the Client as part of the Photography Services on the terms and for the specific uses set out in the formal quotation for the Photography Services (the "Licence").
(b) The copyright in the images is retained by Claire Borley at all times throughout the world.
(c) Claire Borley supplies the technical and artistic ability to illustrate an idea photographically, and sells the right to reproduce those images in a given context. No copyright in any images shall pass to the Client whether on delivery of images to the Client, or on Claire Borley's grant of the Licence in respect thereof.
4. Use
(a) The Licence comes into effect from the date of payment of the relevant invoice(s). No use may be made of the images before payment in full of the relevant invoice(s) without the express permission of Claire Borley. Any permission which may be given for prior use by Claire Borley in writing will automatically be revoked if full payment is not made by the due date or if the Client is declared bankrupt or put into receivership or liquidation.
(b) The Licence granted is personal to the Client and may not, without the prior written permission of Claire Borley, be assigned, nor may any image delivered to the Client be loaned or transferred to third parties save for the purpose of the exercise by the Client of its Licence rights.
(c) Claire Borley reserves the right to refuse to supply or grant a Licence to a third party when requested to do so by the Client.
(d) The Licence is not exclusive to the Client except when specified in the formal quotation.
(e) Permission to use the images for purposes outside the terms of the Licence will normally be granted upon payment of a further fee, which must be mutually agreed in writing (and paid in full) before such further use.
(f) Unless otherwise agreed in writing, all further licences in respect of the images will be subject to these terms.
5. Client Confidentiality
Claire Borley will keep confidential and will not disclose to any third parties or make use of material or information communicated to her in confidence for the purposes of the Photography Services which is marked as confidential or, if disclosed orally, after confirmation in writing to Claire Borley that such information is confidential, save as may be reasonably necessary to enable Claire Borley to carry out her obligations in relation to the Photography Services.
6. Indemnity
(a) While Claire Borley takes all reasonable care in the performance of this agreement generally, she shall not, to the fullest extent permitted by law, be liable for any loss or damage suffered by the Client or by any third party arising from use or reproduction of any image or its caption.
(b) The Client agrees to indemnify Claire Borley in respect of any claims or damages or any costs arising which Claire Borley may incur as a result of use of any image supplied to the Client by Claire Borley infringing the intellectual property rights of a third party.
(c) The Client must satisfy itself that all necessary rights, model releases or consents which may be required for reproduction, are obtained and it is acknowledged that Claire Borley gives no warranty or undertaking that any such rights, model releases or consents have or will be obtained whether in relation to the use of names, people, trade marks, registered or copyright designs or works of art depicted in any image. In the event that the image is published or reproduced by or with the authority of the Client then the Client shall indemnify Claire Borley against any loss or damage, proceedings or costs where such rights, releases or consents have not been obtained.
(d) Claire Borley's liability for all claims arising under this Agreement shall not exceed in any event the total amount paid under this invoice (other than for death or personal injury caused by negligence, fraud or where such limitation of liability is otherwise prohibited by law).
7. Payment
(a) Payment terms are strictly 30 days from date of invoice by crossed cheque made payable to "Claire Borley" or by automated credit transfer (BACS). BACS details will be supplied with the invoice if this is a more convenient method of payment. Proof of postage of remittances is not considered proof of receipt, and clients are advised to send payment by any method affording proof of delivery.
(b) If payment is not made in accordance with (a) above then Claire Borley may terminate this Agreement and claim interest on any unpaid amounts at a rate of 3% above the base rate of [NatWest Bank plc].
(c) If any invoice issued to the Client is not paid by the Due Date, then all unpaid invoices issued to the Client become due of immediate effect, even if it is less than 30 days from the issue date, and that Claire Borley may consider these invoices as overdue when pursuing legal action for the recovery of said debts.
(d) A fee of £10.00 (including VAT) may be made for each account reminder, duplicate invoice, or any other paperwork, correspondence or phone calls involved with the pursual of a debt. This fee is non-refundable, and represents the additional time spent pursuing overdue invoices.
(e) Claire Borley reserves the right to suspend ongoing services, such as (but not limited to) the Downloadable Web Page or other distribution of images, once any invoice issued to a Client becomes overdue, and also reserves the right to inform the reason of this to third parties to whom this suspension of service affects.
(f) Claire Borley or her authorised representative may subject to giving reasonable notice inspect any records, accounts and books relating to the images delivered to the Client by Claire Borley to ensure that the images are being used only in accordance with the Licence.
8. Expenses
Where extra expenses or time are incurred by Claire Borley as a result of alterations to the original brief by the Client, or otherwise at their request, the Client shall give approval to and be liable to pay such extra expenses or fees at Claire Borley's normal rate in addition to the expenses shown on the formal quotation as having been agreed or estimated.
9. Rejection
Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style, composition or editing of the Photographic Services.
10. Cancellation & Postponement
(a) Once the Client has made a booking for a specific time and date, Claire Borley will not accept any other work from other clients for those times and dates.
(b) As a result, once a booking is made, if it is subsequently cancelled, a cancellation fee will be charged to the Client according to the following schedule. If the Client cancels a booking within two weeks of any confirmed date, a fee of 50% of the booked time rate will be charged. If the Client cancels photography within one weeks of any confirmed date, a fee of 100% of the booked time rate will be charged. In addition to this cancellation fee, the Client will be charged for any expenses already incurred by Claire Borley.
11. Right to a credit
(a) Claire Borley asserts her moral rights, including the right to be identified as the author of the work, set out in the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof.
(b) Unless otherwise agreed in writing if any image reproduced by the Client omits the copyright notice or credit line specified by Claire Borley any fee payable by the Client shall be subject to an increase specified by Claire Borley, and in any event an increase of not less than 25%.
12. Delivery of images
(a) Claire Borley will edit every take and deliver digital contact sheets electronically of what she considers to be the best representation of every situation covered. As a result, printed contact sheets will only be supplied to the client if agreed so beforehand and will incur a charge for their production.
(b) All files are delivered as colour Adobe RGB 1998 .tif files or sRGB .jpg files as requested. Client assumes all responsibility for any RGB to CMYK prepress work required. Client agrees to hold harmless Claire Borley from any claims arising from such work. Claire Borley is not responsible for how images render on websites.
13. Storage
Claire Borley will use reasonable endeavours to archive the images indefinitely. However, Claire Borley makes no warranty about the nature of its archive past the date of first delivery of final images. Clients should treat the delivered files carefully, and recommends that the Client keeps a safe copy for the duration of the Licence.
14. Third Parties
Nothing in these terms nor any formal quotation shall give rights to any parties other than the Client and Claire Borley.
15. Applicable Law
This Agreement shall be governed by the laws of England.
16. Variation
This Agreement shall not be varied except by agreement in writing by the Client and Claire Borley.
