Terms and Conditions of Trading
1. DEFINITIONS
(a) For the purpose of this agreement "the Client" shall refer to the person(s) / company employing the services of the Photographer and shall be as stated under “Client” on all estimates/quotes/invoices produced by the Photographer.(b) For the purpose of this agreement "the Photographer" shall refer to Paul Colwell, being the Author of the Photograph(s).
(c) "Photograph(s)" means all photographic material furnished by the Photographer, whether transparencies, negatives, prints, digital files or any other type of physical or electronic material in existence now or yet to be developed.
(d) “Use(s)”/"Used"/"Usage" means any form of publication or copying of the whole or part of any photograph, altered or not, whether by printing, photography, slide projection (whether or not to an audience), xerography, artists reference, artists illustration, layout or presentation, electronic or mechanical reproduction or storage by any other means including web site and CD rom publication.
(e) "The Focal Space" is the trading name of Paul Colwell.
(f) "Photograph(s) Purchased for Commercial Use" are all Photograph(s) supplied with a Licence to Use.
(g) "Photograph(s) Purchased for Non-Commercial Use" are all Photograph(s) supplied without a Licence to Use.
(h) "Commercial" means related to any form of commercial, business, professional or profit making activity.
(i) "Non-Commercial" means in no way related to any form of commercial, business, professional or profit making activity.
2. GENERAL
(a) All contracts verbal or written are only accepted on the basis that the Terms and Conditions of the Photographer are the only ones applicable.(b) Other Terms and Conditions proffered by the Client are specifically excluded unless agreed in writing beforehand by the Photographer.
(c) Where time is of the essence, the Photographer, entirely at his own discretion, may accept an instruction given orally. In this event the Photographer shall accept no liability for any error in executing the instruction.
(d) Unless the Photographer is given prior written notice by the Client, the person placing or signing the order on behalf of the Client is deemed to be authorised to do so.
(e) When a Client’s policy is not to rely on email confirmations, hardcopy paperwork must be supplied; if none is provided, then the email traffic will constitute a contract in law.
3. COPYRIGHT
(a) The Photographer retains the entire copyright in the Photograph(s) at all times, throughout the World.(b) Where Use of Photograph(s) has taken place and settlement has not been made or the terms of the Licence to Use have been breached, the Photographer will make such charges to the publisher of those images as falls within the Copyright, Designs and Patents Act 1988.
4. USE
(a) Photograph(s) Purchased for Commercial Use may only be Used as defined in the relevant Licence to Use.(b) The Licence to Use comes into effect from the date of payment of the relevant invoice(s).
(c) No use may be made of the Photograph(s) before payment in full of the relevant invoice(s), without the Photographer’s express permission in writing. Any Use before payment of the invoice constitutes an infringement of rights and a breach of these Terms and Conditions, entitling the Photographer to rescind the License to Use and rendering the Client liable to the payment of additional charges.
(d) Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Client is put into receivership or liquidation.
(e) Where restricted in the Licence to Use Agreement, permission to Use the Photograph(s) for other purposes will normally be granted upon payment of a further fee to be mutually agreed. Note: A written agreement must be reached with the Photographer before the Photograph(s) may be Used for other purposes. Where Use of an image is made which breaches the terms of the Licence to Use, further charges will be made.
(f) No partial or other assignment of copyright shall be implied by any usage rights granted.
(g) On the Client's death or bankruptcy or (if the Client is a Company) in the event of a Resolution, Petition or Order for winding-up being made against it, or if a Receiver or an administration is appointed, any licence granted shall immediately cease.
(h) Photograph(s) Purchased for Non-Commercial Use may be Used by the Client for personal Non-Commercial Use only.
(i) Any Commercial Use of Photograph(s) Purchased for Non-Commercial Use will be treated as breach of copyright and the Photographer will make such charges to the publisher of those images as falls within the Copyright, Designs and Patents Act 1988.
5. Accuracy of Products
(a)The dimensions of printed photographs will be accurate to within 6mm of the specified size.(b)The dimensions of picture mounts and frames will be accurate to within 4% of the specified size.
(c)The dimensions of stretched canvas frames will be accurate to within 6% of the specified size.
(d)The dimensions of digital photographs will be accurate to within 20 pixels of the specified size.
(e)The file size of all digital photographs are estimates only.
(f)The colour, contrast and sharpness of the Photograph(s) may vary between printed copies.
(g)All product’s colour, contrast, dimensions and materials of manufacture may vary between individual products and/or between orders.
6. EXCLUSIVITY
(a) Unless agreed to in writing on the Licence to Use, no exclusivity is given or implied to the Client.(b) The Photographer retains the right in all cases to use or sell the Photograph(s) to a third party.
(c) Exclusivity will not be unreasonably withheld but only by written agreement with the Photographer before work commences.
7. CLIENT CONFIDENTIALITY
(a) The Photographer will keep confidential and will not disclose to any third parties or make use of information communicated to him in confidence for the purposes of the photography, save as may be reasonably necessary to enable the Photographer to carry out his obligations in relation to the commission.8. INDEMNITY
(a) The Photographer will not be liable for any loss or damage, for any consequential loss of profit or income however caused; including negligence by the Photographer, and it is the Client’s responsibility to insure against such loss or damage.(b) It is the Client who must satisfy himself/herself/it’s self that all necessary rights, model releases, clearances or consents which may be required for reproduction of people, places, items, trade marks, copyright designs or works of art depicted within any Photograph(s) are obtained.
(c) It is acknowledged that the Photographer gives no warranty or undertaking that any such rights, releases or consents are 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 picture.
(d) The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed in writing before the photograph(s) are created.
(e) In all other cases the Client shall indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.
9. PAYMENT
(a) Where the Photographer has been employed to produce Photographs for Non-Commercial Use, the Client will make payment immediately upon being asked by the Photographer. When paying for sessions this will usually be at the end of the session. When paying for prints and products this usually will be before collection or delivery.(b) Where the Photographer has been employed to produce Photographs for Commercial Use, payment by the Client will be strictly within 30 days of the issue of the relevant invoice. If the Client does not make payment in accordance with these Terms and Conditions then the Photographer at his option may rescind the License to Use and recover damages, or charges and interest at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from the date payment was due until payment is made.
(c) Where a Client is a company and whether or not that company has gone into liquidation the individual directors will be responsible for all outstanding fees and costs in relation to the contract.
10. EXPENSES
(a) Where extra expenses or times are incurred by the Photographer as a result of alterations to the original brief by the Client, or otherwise. The Client shall give approval to and be liable to such extra expenses or fees, in addition to the fees and expenses shown on the Estimate as having been agreed or estimated.11. REJECTION
(a) Unless a rejection fee has been agreed in advance, the Client has no right to reject the Photograph(s) on the basis of style, composition, creativity or technical specification.12. COLOUR AND MANIPULATION
(a) Whilst every effort will be made by the Photographer to ensure accurate colour depiction, no liability will be accepted for any colour inaccuracy.(b) Manipulation or Modification of the Photograph(s) or use of only a portion of the Photograph(s) may only take place with the written permission of the Photographer, with the exception of colour balancing and sharpening for reproduction. Overlaying of graphics and text is permitted.
13. CANCELLATION & POSTPONEMENT
(a) A booking is considered firm as from the date of confirmation, whether in writing or by oral instruction; and accordingly the Photographer, at his discretion, may charge a fee of cancellation or postponement, or may require a non-refundable deposit to confirm the booking.(b) In the case of commissioned work, if the Photographer is unable to complete a commission, any deposits paid will be refunded in full, but the Photographer will not be liable for any further expenses incurred by the client.
(c) All Photographs supplied by the Photographer are made to order.
14. RIGHT TO A CREDIT
(a) The Licence to Use requires that the Photographer’s name will be printed on, or in reasonable proximity to, all published Commercial Uses of the Photograph(s). In the case of internet/intranet publication the credit must be included on each web page that a photograph is displayed. The credit must be visible and clearly readable. The Photographer also asserts his statutory and moral right to be identified in the circumstances set out in Sections 77-79 of the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof.(b) If the Client fails to credit any photograph an additional 50% of the original fee (minimum £100) will be payable for each infringement.
15. SUPPLY TO THIRD PARTIES
(a) Photographs Purchased for Commercial Use may only be given to a third party with written permission from the Photographer, as defined in the License to Use, with the exception of printers, web designers graphic designers, etc employed by the Client to produce material for Use by the Client.(b) Photograph(s) Purchased for Commercial Use may not be sold or gifted to any third party by the Client without written permission from the photographer.
(c) Photograph(s) Purchased for Non-Commercial Use may be gifted but not sold to any third party for Non-Commercial Use only.
16. ELECTRONIC STORAGE
(a) Save for the purposes of production for the licensed Use(s), the Photograph(s) Purchased for Commercial Use may not be stored or archived in any form without the written permission of the Photographer.(b) Digital Data is stored by the Photographer on the understanding that the Photographer is not responsible for the future integrity of that data, or of any failure to retrieve data from the Photographer’s archive.