STANDARD TERMS & CONDITIONS OF BUSINESS

 

  1. APPLICATION OF TERMS

    1. 1.1.These terms and conditions will:

      1. 1.1.1.apply to all Assignments undertaken by the Artist for the Client and to all Usage Licences or extended and/or additional Usage Licences relating to such Assignments; and

      2. 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

 “Artist” means the commissioned Artist James Mousley whose details are set out in the Estimate and invoice(s) for an Assignment.

“Assignment” means a commission by the Client of the Artist for provision of Artist services or existing artworks and/or Material.

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

“Client” is the party commissioning the Artist and includes the Client’s affiliates, assignees, and successors in title.

“Estimate” means any email or other document electronic or otherwise created by the Artist and setting out the Fee and expenses for any artwork with information as to Usage Licences.

“Fee” means the Artist’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 material created by the Artist 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. “Usage Licence” means the licence to use the Licensed Images as set out in clause 3.3 and clause 9 below.

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

  1. ESTIMATES

    1. 3.1.Estimates provided by the Artist are based upon the information provided by

the Client in advance of preparing the Estimate.

3.2. Changes to the requirements for a commission after completion or during production may increase the Fee and expenses.

  1. CANCELLATION OF commission 

    1. 6.1.If a confirmed commission is cancelled or postponed for reasons outside the control of the Artist the Artist James Mousley reserves the right to charge a cancellation fee of 50% of the commission cost. 

  2. ACCEPTANCE & DELIVERY

    1. 7.1.Following completion of the work the Artist will deliver the Material to the Client as soon as reasonably practicable and in the agreed format.

    2. 7.2.Subject to any previously agreed deadlines for post-production work the Artist will carry out any such work required as soon as reasonably practicable but cannot guarantee urgent turnaround.

    3. 7.3.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.

  3. STORAGE OF DIGITAL MATERIAL

    1. 8.1.The Client shall ensure that it takes appropriate steps to keep safe an exact digital copy of all digital Material supplied for the duration of the Usage Licence. The Artist will not be responsible for archiving any Material unless by prior written agreement with the Client.

    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 Artist.

    3. Upon publication of the Licensed Images or any of them and on the Artist request the Client shall supply to the 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.

  

  1. COPYRIGHT & USAGE LICENCES

    1. 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 Artist shall vest in and be retained by the Artist at all times.

    2. 9.2.The Client is responsible for informing the Advertiser of the extent and limitations of all Usage Licences.

    3. 9.3.Upon payment in full of both the Fee and expenses for an Assignment the Artist grants to the 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.

    4. 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 months after the delivery date, whichever is sooner (unless otherwise agreed in writing).

    5. 9.5.Usage of the Licensed Images is limited to use of such images as provided by the Artist and the Client shall not manipulate any Licensed Photograph or make use of only part of any individual image without the prior written permission of the Photographer.

    6. 9.6.The Client may only sub-license the right to use the Licensed Images to the disclosed Advertiser as agreed and strictly on the terms of the Usage Licence.

    7. 9.7.Neither the Client nor the Advertiser may use the Licensed Images in relation to any additional products or services not specified in the Usage Licence.

    8. 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.

  1. ADDITIONAL/EXTENDED USAGE

    1. 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 Artist in advance.

    2. 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).

    3. 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.

    4. 10.4.The Client shall procure that the Advertiser requests any necessary extended or additional usage licence(s).

    5. 10.5.Any extended or additional use made without permission shall attract an additional fee.

  1. EXCLUSIVITY

    1. 11.1.All Usage Licences granted by the Artist to the Client shall be exclusive to the Advertiser and the Client unless otherwise agreed in writing.

    2. 11.2.Subject to clause 11.4, the Artist undertakes not until 2 years after the shoot or the expiry of the Usage Licence(s) (whichever is later) to grant any other licence in respect of the Material to any third party.

    3. 11.3.After expiry of the exclusivity period the Artist shall make such use of the Material including the Licensed Images as he/she sees fit.

    4. 11.4.Nothing in this clause 11 shall prevent the Artist at any time from using the Material, whether commercial, test or speculative (images shot for presentation/pitch/ awards), in any form and in any manner worldwide for the purpose of promoting his/her services, provided that in the case of unpublished Material the Artist shall first obtain the Client’s consent, such consent not to be unreasonably withheld. The Artist reserves the right to use the Material for this purpose whether or not in the context of the Advertiser’s advertisement or other material in which the Material is incorporated, including without limitation the Advertiser’s branding.

 

  1. CREDITS

    1. 13.1.In respect of all editorial uses and otherwise as additionally stated in the Estimate the Client shall procure that the Artist’s name is printed on or in reasonable proximity to all published reproductions of the Licensed Images.

  1. PAYMENTS

    1. 14.1.All expenses and production costs must be paid in advance of a custom commission unless otherwise agreed in writing and such invoices are due on presentation.

    2. 14.2.All other invoices must be paid within 30 days of the date of issue. The Artist 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.

    3. 14.3.If there is a delay of one month or more between agreed pre-production of work, the Artist reserves the right to invoice the Client for the pre-production element of the Fee and for any expenses already incurred by the Artist.

 

    1. 14.4.Usage Licence and any third party fees negotiated by the Artist are payable regardless of whether Licensed Images are in fact used by the Client or the Advertiser.

    2. 14.5.All payments are due in pounds sterling unless expressly stated otherwise.

 

  1. EXPENSES

    1. 15.1. All expenses figures provided in advance of a commission are estimates only and the Client should allow a minimum 10% contingency budget in all cases. All estimated costs are stated exclusive of taxes.

    2. 15.2. The Artist 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.

    3. 15.3. Receipts for expenses can only be provided if requested prior to work 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.

    4. 15.4. Where extra expenses or time are incurred by the Artist 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 Artist’s normal rate.

  

  1. RETURN OF MATERIALS

    1. 16.1. Within 30 days of expiry of any Usage Licence the Material must be returned to the Artist in good condition and any digital files stored by the Client and the Advertiser must be deleted.

 

  1. INDEMNITY

    1. 17.1. The Client shall indemnify the Artist and keep him/her 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.

  

  1. EXTENT OF LIABILITY

    1. 18.1. The Artist 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 Artist, agents or sub-contractors or otherwise

  

 

  1. CONFIDENTIALITY

    1. 19.1. The Artist 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 Artist to carry out his/her obligations in relation to the Assignment.

    2. 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.

    3. 19.3.The Artist will not be liable for any breach of confidentiality by any third party.

 

  1. TERMINATION

    1. 20.1.  Either party will be entitled to terminate these Terms immediately by giving written notice to the other if the other party:

      1. 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

      2. 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.

  

  1. EFFECTS OF TERMINATION

    1. 21.1.On termination or expiry of these Terms for whatever reason:

      1. 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.

 

    1. 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.

 

  1. FORCE MAJEURE

    1. 22.1.The Artist 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.

 

  1. GENERAL

    1. 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.

    2. 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).

 

    1. 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.

    2. 23.4.Entire Agreement and Variation: These Terms and the Estimate constitute the entire agreement between the parties with respect to their subject matter.

    3. 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.

 

    1. 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.

    2. 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.

    3. 23.8.Law and Jurisdiction: These Terms are governed by the laws of England and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of England.

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