STANDARD TERMS & CONDITIONS
RICH LAKOS PHOTO
CORRECT AS OF 1st Feb, 2024
STANDARD TERMS & CONDITIONS OF BUSINESS:
1. APPLICATION OFTERMS
1.1 These termsand conditions will:
1.1.1 apply toall Assignments undertaken by the Photographer for the Client and to all UsageLicences or extended and/or additional Usage Licences relating to suchAssignments; and
1.1.2 prevailover any inconsistent terms or conditions contained, or referred to, inClient’s purchase order, confirmation of order, acceptance of Estimate, orspecification or other document supplied by Client, or implied by law, tradecustom, practice or course of dealing.
2. DEFINITIONS
“Photographer” means the commissioned Photographer whose details areset out in the Estimate and invoice(s) for an Assignment.
“Assignment” means a commission by the Client of the Photographer forprovision of Photographer’s services at a shoot for the purpose of creating theMaterial.
“Advertiser” means any client of the Client for whose benefit or usethe Material is commissioned.
“Client” is the party commissioning the Photographer and includesthe Client’s affiliates, assignees, and successors in title.
“Estimate” means any email or other document electronic or otherwisecreated by the Photographer and setting out the Fee and expenses for anyAssignment along with information as to Usage Licences.
“Fee” means the Photographer’s fees as set out in the Estimate.
“Licensed Images” means the still and/or moving images selected from theMaterial and as specified in the Estimate as to be licensed for use inaccordance with these Terms.
“Material” means all photographic material created by thePhotographer pursuant to an Assignment and includes but is not limited totransparencies, negatives, prints, digital files or any other type of physicalor electronic material recording either still or moving images.
“Shoot Duration” means the number of confirmed days of a shoot whetherundertaken 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 outin clause 3.3 and clause 9 below.
“Working Day” means a day that is not a Saturday or Sunday or any daythat is a Bank Holiday in England.
"B.U.R" means Base Usage Rate and is the figure by reference towhich additional usage fees to the usage fees stated on the Photographer'soriginal Estimate as accepted by the Client are established.
3. ESTIMATES
3.1 Estimatesprovided by the Photographer are based upon the information provided by theClient in advance of preparing the Estimate.
3.2 Changes to the requirements for an Assignment beforeor during a shoot may increase the Fee and expenses.
3.3 Estimatesshall specify the number and characteristics of Licensed Images which theClient shall be entitled to use and the media and territories in and durationsfor which they may be used and these shall be the terms of the Usage Licenceunless otherwise agreed in writing. The Client is responsible for checking theEstimate to ensure that it provides for all requirements including but notlimited to post production, high resolution files, the correct usage licencesand all technical specifications for the Licensed Images.
3.4 Unlessotherwise agreed in writing the Client’s agreement of shoot date(s) shall bedeemed to be acceptance of the Estimate.
3.5 If no B.U.R.has been stated, it will be equivalent to the Photographer's shoot fee.
4. CONDUCT OF THESHOOT
4.1 The shoot willbe arranged on date(s) mutually agreed between the Parties.
4.2 During theshoot the Photographer will take account of the Client’s reasonableinstructions in respect of the shoot brief.
4.3 If the Clientis not present during the shoot then the Photographer’s interpretation of thebrief shall be deemed acceptable to Client.
5. OVERTIME ANDANTISOCIAL HOURS
5.1 A normal dayis up to 9 hours (including 1 hour for lunch) between 9am and 6pm on anyWorking Day.
5.2 Any hoursworked outside a normal day (“Antisocial Hours”) will incur additional overtimefees for the Photographer, crew and facilities. These will be agreed betweenthe Parties.
5.3 Additionalfees for crew, facilities and any other third parties required to workAntisocial Hours shall be as set out in their standard terms or otherwisenegotiated.
6. CANCELLATIONOF SHOOT
6.1 If a confirmedshoot is cancelled or postponed for reasons outside the control of thePhotographer (including unsuitable weather / light), the Photographer reservesthe right to charge a cancellation fee at the following rates together with allincurred expenses:
On Shoot Duration of two days or less:
6.1.1 cancellation on less than 3 Working Days notice - 100% of Fee + all expenses;or
6.1.2 on 3 to 6 Working Days notice - 75% of Fee + allexpenses; or
6.1.3 on morethan 6 Working Days notice - 50% of Fee + all expenses.
On Shoot Duration in excess of 2 days and on noticeequivalent to:
6.1.4 theShoot Duration or less -100% of Fee + all expenses; or
6.1.5 morethan the Shoot Duration but not more than twice the Shoot Duration - 75% of Fee+ all expenses; or
6.1.6 morethan twice the Shoot Duration - 25% of Fee + all expenses.
7. ACCEPTANCE& DELIVERY
7.1 Followingcompletion of the shoot the Photographer will deliver the Material to theClient as soon as reasonably practicable and in the agreed format to enable theClient to select the Licensed Images.
7.2 Subject to anypreviously agreed deadlines for post-production work the Photographer willcarry out any such work required as soon as reasonably practicable but cannotguarantee urgent turnaround.
7.3 Unlessexpressly agreed in writing between the Parties the Client shall not beentitled to reject the Material on the basis of style or composition.
8. STORAGE OFMATERIAL
8.1 The Clientshall ensure that it takes appropriate steps to keep safe an exact digital copyof all Material supplied for the duration of the Usage Licence. ThePhotographer will not be responsible for archiving any Material unless by priorwritten agreement with the Client.
8.2 Save for thepurposes of the Usage Licence including clause 8.1 above the Material may notbe stored in any electronic medium or transmitted to any third party, includingfor the avoidance of doubt any associated or branch office of the Client,without the written permission of the Photographer.
8.3 Uponpublication of the Licensed Images or any of them and on the Photographer’srequest the Client shall supply to the Photographer free of charge ahigh-resolution digital file, PDF format file or good quality hard copies ofthe Licensed Images in the context in which they are published.
9. COPYRIGHT& USAGE LICENCES
9.1 The entirecopyright and all similar rights throughout the world in all the Material andownership of all physical materials created by or for the Photographer shallvest in and be retained by the Photographer at all times.
9.2 The Client isresponsible for informing the Advertiser of the extent and limitations of allUsage Licences.
9.3 Upon paymentin full of both the Fee and expenses for an Assignment the Photographer grantsto the Client the right to use the Licensed Images on the express terms of theUsage Licence. No use may be made before payment in full without thePhotographer’s express agreement in writing.
9.4 Provided thatthe Client has paid in full all invoices relating to the Assignment the periodof use specified in the Usage Licence commences from the date of first use or 6months after the shoot date, whichever is sooner (unless otherwise agreed inwriting).
9.5 Usage of theLicensed Images is limited to use of such images as provided by thePhotographer and the Client shall not manipulate any Licensed Photograph ormake use of only part of any individual image without the prior writtenpermission of the Photographer.
9.6 The Client mayonly sub-license the right to use the Licensed Images to the disclosedAdvertiser as agreed and strictly on the terms of the Usage Licence.
9.7 Neither theClient nor the Advertiser may use the Licensed Images in relation to anyadditional products or services not specified in the Usage Licence.
9.8 Any licence touse the Licensed Images shall automatically be revoked if payment in full ofboth the Fee and expenses for an Assignment is not received by the due datespecified in the relevant invoices or if the Client or Advertiser becomesinsolvent or is put into receivership or is subject to any of the matters setout in clause 20.1.2 below.
10. ADDITIONAL/EXTENDEDUSAGE
10.1 The Fee isbased on the Usage Licence as specified in the Estimate. Any additional orextended use (including for the avoidance of doubt the use of individual stillframes from licensed moving image footage) will attract an additional fee whichmust be agreed by the Photographer in advance.
10.2 Any estimatesof additional or extended usage licence fees provided to the Client are validfor a period of three months from the date of the estimate only (unlessotherwise notified in writing).
10.3 The Clientacknowledges that such estimates do not include provision for any third partyrights which are the responsibility of the Client pursuant to clause 12 below.
10.4 The Clientshall procure that the Advertiser requests any necessary extended or additionalusage licence(s).
10.5 Any extended oradditional use made without permission shall attract an additional fee.
11. EXCLUSIVITY
11.1 All UsageLicences granted by the Photographer to the Client shall be exclusive to theAdvertiser and the Client unless otherwise agreed in writing.
11.2 Subject toclause 11.4, the Photographer undertakes not until 2 years after the shoot orthe expiry of the Usage Licence(s) (whichever is later) to grant any otherlicence in respect of the Material to any third party.
11.3 After expiry ofthe exclusivity period the Photographer shall make such use of the Materialincluding the Licensed Images as he/she sees fit.
11.4 Nothing in thisclause 11 shall prevent the Photographer 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 promotinghis/her services, provided that in the case of unpublished Material thePhotographer shall first obtain the Client’s consent, such consent not to beunreasonably withheld. The Photographer reserves the right to use the Materialfor this purpose whether or not in the context of the Advertiser’sadvertisement or other material in which the Material is incorporated,including without limitation the Advertiser’s branding.
12. THIRD PARTYRIGHTS
12.1 Engagements ofthird party suppliers, including models, are subject to such terms andconditions as those parties may require which shall be made available by thePhotographer on request.
12.2 Estimated modelfees cover modelling time only and the Client shall be responsible for clearingmodel usage unless otherwise stated on the Estimate.
12.3 Items createdspecifically for the shoot shall remain the property of their creator unlessagreed otherwise.
12.4 ThePhotographer shall not be responsible for obtaining any clearances in respectof third party copyright works, trade marks, designs or other intellectualproperty used in relation to the Assignment or any Usage Licence or extensionthereof unless expressly agreed in writing prior to the shoot.
13. CREDITS
13.1 In respect ofall editorial uses and otherwise as additionally stated in the Estimate theClient shall procure that the Photographer’s name is printed on or inreasonable proximity to all published reproductions of the Licensed Images.
14. PAYMENTS
14.1 All expensesand production costs must be paid in advance of the shoot unless otherwiseagreed in writing and such invoices are due on presentation.
14.2 All otherinvoices must be paid within 30 days of the date of issue. The Photographerreserves the right to charge interest on late payments at the rate prescribedby the Late Payment of Commercial Debts (Interest) Act 1998 from the datepayment was due until the date payment is made.
14.3 If there is adelay of one month or more between agreed pre-production work and
the shoot, the Photographer reserves the right to invoicethe Client for the pre-production element of the Fee and for any expensesalready incurred by the Photographer.
14.4 Usage Licenceand any third party fees negotiated by the Photographer are payable regardlessof whether Licensed Images are in fact used by the Client or the Advertiser.
14.5 All paymentsare due in pounds sterling unless expressly stated otherwise.
15. EXPENSES
15.1 All expensesfigures provided in advance of a shoot are estimates only and the Client shouldallow a minimum 10% contingency budget in all cases. All estimated costs arestated exclusive of VAT.
15.2 ThePhotographer will endeavour to work within the agreed cost estimate, butindividual costs within the Estimate may vary at his/her discretion to enablethe most effective realisation of the brief.
15.3 Receipts forexpenses can only be provided if requested prior to shoot confirmation.Provision of receipts will incur an accountancy charge of 1.5% of total costsand fees incurred in respect of the Assignment subject to a minimum charge of£250 and a maximum of £600.
15.4 Where extraexpenses or time are incurred by the Photographer as a result of alterations tothe original brief by the Client, or otherwise at its request, the Client shallbe liable to pay such extra expenses and additional fees at the Photographer’snormal rate.
16. RETURN OFMATERIALS
16.1 Within 30 daysof expiry of any Usage Licence the Material must be returned to thePhotographer in good condition and any digital files stored by the Client andthe Advertiser must be deleted.
17. INDEMNITY
17.1 The Clientshall indemnify the Photographer and keep him/her and their respective officersand 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 allegedinfringement, of any intellectual property rights relating to any failure bythe Client to obtain third party clearances or arising out of use of theMaterial by the Client or the Advertiser outside of the Usage Licence orotherwise as a result of any breach by the Client or the Advertiser of theseterms.
18. EXTENT OFLIABILITY
18.1 ThePhotographer shall not be liable to the Client for any loss of profit, loss ofcontracts, loss of business or revenues, loss of production or for anyindirect, special or consequential loss, damage, costs, expenses or otherclaims (whether caused by the negligence of the Photographer, Photographer’semployees, agents or sub-contractors or otherwise) which arise out of or inconnection with the shoot.
18.2 ThePhotographer’s maximum aggregate liability for all losses, damages, costs,
claims and expenses however or whenever arising out of orin connection with these Terms shall in any event be limited to the totalamount of the fees paid to the Photographer in relation to the relevantAssignment.
18.3 Notwithstandingthe above, nothing in these terms excludes or limits the liability of thePhotographer for death or personal injury caused by the Photographer’snegligence or that of his/her employees, agents or sub-contractors, for anyfraudulent statement or act or for any matter which it would be illegal toexclude.
18.4 ThePhotographer hereby disclaims any warranties, conditions and other terms on orrelating to the services hereunder or any parts thereof which might otherwisebe implied whether by statute, law, custom, course of dealing or otherwise,including without limitation any warranty, condition, or other terms ofmerchantability, quality, fitness for purpose or non-infringement to thefullest extent permitted by law.
19. CONFIDENTIALITY
19.1 ThePhotographer will keep confidential and will not disclose to any third partiesor make use of material or information communicated to them in confidence forthe purposes of the Assignment, save as may be reasonably necessary to enablethe Photographer to carry out his/her obligations in relation to theAssignment.
19.2 It shall be thesole responsibility of the Client to arrange for any third party involved inthe Assignment to enter into any confidentiality agreement.
19.3 ThePhotographer will not be liable for any breach of confidentiality by any thirdparty.
20. TERMINATION
20.1 Either partywill be entitled to terminate these Terms immediately by giving written noticeto the other if the other party:
20.1.1 commits amaterial 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 thesubject of a bankruptcy order or becomes insolvent or makes any arrangement orcomposition with or assignment for the benefit of its creditors or if any ofthe other party’s assets are the subject of any form of seizure, or the otherparty goes into liquidation either voluntary (otherwise than for reconstructionor amalgamation) or compulsory, or a receiver or administrator is appointedover the other party’s assets.
21. EFFECTS OFTERMINATION
21.1 On terminationor expiry of these Terms for whatever reason:
21.1.1 TheClient shall pay all sums due and owing the date of which will be automaticallyaccelerated 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 terminationand/or suspension of these Terms shall be without prejudice to any other rightsor remedies a party may be entitled to hereunder or at law and shall not affectany accrued rights or liabilities of either party.
22. FORCEMAJEURERE
22.1 ThePhotographer shall not be liable for any failure or delay in the performance ofany of such party’s obligations under these Terms caused by any circumstancesbeyond such party’s reasonable control.
23. GENERAL
23.1 Waiver: Nodelay or omission by a party in exercising any right or remedy under theseTerms shall operate to impair such right or remedy or be construed as a waiverthereof. Any single or partial exercise of any such right or remedy shall notpreclude 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 itsrights and obligations under these Terms without the prior written consent ofthe other party (such consent not to be unreasonably withheld or delayed).
23.3 Notices: Anynotice 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 beenreceived 48 hours after posting; or (c) sent by fax, in which case it shall bedeemed to have been received when transmitted.
23.4 EntireAgreement and Variation: These Terms and the Estimate constitute the entireagreement 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 thensuch part shall be severed from the Terms and the remainder shall continue tobe 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 theparties.
23.7 Third PartyRights: The provisions of these Terms are for the benefit of the parties andare not intended to confer upon any person except the parties any rights orremedies hereunder. No person who is not a party to these Terms shall have anyright to enforce any of its terms pursuant to the Contracts (Rights of ThirdParties) Act 1999.
23.8 Law andJurisdiction: These Terms are governed by the laws of England & Wales andthe Parties hereby irrevocably submit to the non-exclusive jurisdiction of thecourts of England & Wales.
it to the non-exclusive jurisdiction of the courts ofEngland & Wales.