Terms and conditions
Yeah I know, the boring stuff. But this sets out what to expect and the finer details of where and how you can use the shots I take.
It just makes things simple, protects you and me, and alleviates any confusion
Applications of terms
These terms and conditions will:
apply to all assignments undertaken by the photographer for the client and to all usage licenses or extended and/or additional usage licences relating to such assignments; and 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.
Definitions
Definitions
“Photographer” is Kirsty Hill, trading under Kirsty and the Waves, refers to the commissioned photographer whose details are set out in the estimate and invoice(s) for an assignment.
“Assignment” means a commission by the client of the
photographer for provision of photographer’s services at a shoot for the purpose of creating the material.
“Advertiser” means any client of the client for whose benefit or use the material is commissioned.
“Client” is the party commissioning the photographer and includes the client’s affiliates, assignees, and successors in title.
“Estimate” means any email or other document created by the photographer and setting out the fee and expenses for any assignment along with information about usage
licences.
“Fee” means the photographer’s fees as set out in the estimate.
“Licensed Images” means the still 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 photographic material created by the
photographer 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 still images.
“Shoot duration” means the number of confirmed hours of a shoot and includes all shoot, travel, recce, preparation or test days.
“Usage Licence” means the licence to use the Licensed Images as set out in clause 3 and clause 25, 26, 27, 28, 29, 30, 31, 32 below.
“Working day” means a day that is not a Saturday or Sunday or any day that is a Bank Holiday in England and Wales.
“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 provided by the photographer are based upon the information provided by the client in advance of preparing the estimate.
2. Changes to the requirements for an assignment before or during a shoot may increase the fee and expenses.
3. Estimates 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 and these shall be the terms of the usage licence unless otherwise agreed in writing. The client is responsible for checking the estimate 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.
4. Unless otherwise agreed in writing the client’s agreement of shoot date(s) shall be deemed to be acceptance of the Estimate.
5. If no B.U.R. has been stated, it will be equivalent to the
photographer’s shoot fee.
Estimates
The shoot
6. The shoot will be arranged on date(s) mutually agreed between the client and photographer.
7. During the shoot, the photographer will take account of the client’s reasonable instructions in respect of the shoot brief.
8. If the client is not present during the shoot, then the
Photographer’s interpretation shall be deemed acceptable to the client.
Shoot cancellation
9. If a confirmed shoot is cancelled or postponed for reasons
outside the control of the photographer (including lightning storms, gale force winds, poor visibility and low light), the photographer reserves the right to charge a cancellation fee at the following rates together with all incurred
expenses:
10. If the client cancels a confirmed photoshoot, the following fees will apply, in addition to any agreed-upon expenses already incurred:
- up to 72 hours before: 25% of the total fee + incurred costs
- up to 48 hours before: 35% of the total fee + incurred costs
- up to 24 hours before: 50% of the total fee + incurred costs
11. In the event of serious circumstances (for example, illness, bereavement or accident that prevent the photographer from fulfilling the assignment, the
photographer will make reasonable efforts to either:
12. Notify the client at least 24 hours in advance (except in
emergencies or force majeure), arrange a suitable substitute, or offer to reschedule.
13. Should similar circumstances prevent the client from attending, they must notify the photographer immediately. The assignment may be rescheduled up to three times by mutual agreement.
Force majeure
14. The photographer 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.
15. Neither party shall be held liable for any delay or failure to perform obligations under the agreement due to force majeure defined as circumstances beyond their reasonable control that could not have been foreseen or prevented through reasonable efforts.
16. Force majeure includes, but is not limited to: technical failure (e.g. loss of original digital files) war, civil unrest, or government interventions natural disasters, extreme weather, or atmospheric disturbances, fuel shortages or travel disruptions, industrial action, utility outages, fire, or equipment failure, pandemics or public health emergencies
17. Third-party failures essential to the assignment In such
cases: The photographer may terminate the agreement, with
notice to the client. The client is liable only for work already
performed and costs already incurred. No further compensation shall be owed by the photographer. The client may also terminate the agreement within two weeks of notification.
18. In the case of pandemic-related delays, any confirmed
costs may be transferred to a new date selected by the client.
Where the rescheduled date falls in a new calendar year, the
photographer reserves the right to apply an indexation
adjustment of approximately 3%. If a cancellation is necessary due to pandemic restrictions, all internal and external costs will still be invoiced in full.
Storage of material
19. The client will take appropriate steps to keep
safe an exact digital copy of all material supplied for the duration of the usage licence. The photographer will not be responsible for archiving any material unless by prior written agreement with the client.
20. Save for the purposes of the Usage Licence, including clause 19 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.
21. Upon publication of the licensed images or any of them
and on the photographer’s 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.
Copyright and usage licences
22. 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 shall vest in and be retained by the photographer at all times.
23. The Client is responsible for informing the advertiser of the extent and limitations of all usage licences.
24. Upon payment in full of both the fee and expenses for an
assignment the photographer 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.
25. 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 shoot date, whichever is sooner (unless otherwise agreed in writing).
26. Usage of the licensed images is limited to use of such images as provided by the photographer 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.
27. 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.
28. 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.
29. 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 87 below.
Additional/extended usage
30. 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 photographer in advance.
31. 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).
32. The client acknowledges that such estimates do not include provision for any third-party rights which are the responsibility of the Client pursuant to clauses 42, 43, 44 and 45 below.
33. The client shall procure that the advertiser requests any
necessary extended or additional usage licence(s).
34. Any extended or additional use made without permission shall attract an additional fee
Exclusivity
35. All usage licences granted by the photographer to the client shall be exclusive to the advertiser and the client unless otherwise agreed in writing.
36. Subject to clause 41 the Photographer 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.
37. After expiry of the exclusivity period the photographer shall make such use of the material, including the licensed images as he/she sees fit.
38. Nothing under this clause “exclusivity” 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 promoting his/her services, provided that in the case of unpublished material the photographer shall first obtain the client’s consent, such consent not to be unreasonably withheld. The photographer 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.
Third party rights
39. Engagements of third-party suppliers, including models, are subject to such terms and conditions as those parties may require which shall be made available by the photographer on request.
40. Estimated model fees cover modelling time only, and the client shall be responsible for clearing model usage unless otherwise stated on the estimate.
41. Items created specifically for the shoot shall remain the property of their creator unless agreed otherwise.
42. The photographer shall not be responsible for obtaining any clearances in respect of third-party copyright works, trademarks, designs or other intellectual property used in relation to the assignment or any usage licence or extension thereof unless expressly agreed in writing prior to the shoot.
Credits
43. In respect of all editorial uses and otherwise as additionally stated in the “estimate” the client shall procure that the photographer’s name is printed on or in reasonable proximity to all published reproductions of the licensed images.
44. The client may use the images only for the agreed usage and within the defined territory for a duration of two years. When sharing on social media, a tag (@kirstyandthewaves for all photography is required. The client is solely responsible for any misuse of the images by third parties.
Payments
45. All production-related costs, including expenses, must be paid in advance of the shoot, unless otherwise agreed in writing. Such invoices are payable upon presentation.
46. For services or products purchased via the website, full payment is required at the time of purchase using the online payment system. Upon successful payment, the client will receive a confirmation email.
47. For offline purchases or bespoke bookings, the photographer will issue an invoice unless alternative arrangements have been made. These invoices must be paid within 14 calendar days of the invoice date, unless otherwise agreed.
48. An advance payment of at least 30% of the total fee is required before any work commences for commercial work, unless stated otherwise in writing.
49. All remaining invoices must be settled within 30 days of the invoice date, unless a different payment term has been expressly agreed. The photographer reserves the right to apply statutory interest on overdue payments in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, calculated from the original due date until payment is received in full.
50. If there is a delay of one month or more between the completion of agreed pre-production work and the scheduled shoot date, the photographer may issue an invoice for the pre-production portion of the fee, along with any expenses already incurred.
51. Fees related to Usage Licences and any third-party charges arranged by the photographer are payable in full, regardless of whether the licensed images are ultimately used by the client or the advertiser.
52. All payments are to be made in pounds sterling (GBP) unless explicitly agreed otherwise in writing. otherwise.
Andy Warhol
"The best thing about a picture is that it never changes, even when the people in it do."