The Boilerplate. All agreements with clients shall be based upon this general understanding.
These are the terms under which I prefer to work, the rights any photographer should want to maintain and amend as necessary for individual clients to suit their usage needs and licensed accordingly through written or oral agreement.
(a) For the purpose of this agreement “the Agency” and “the Client” shall where the context so admits include their respective assignees, sub-licensees and successor in title. In cases where the Photographer’s Client is a direct Client (i.e. with no Agency or intermediary), all references in this agreement to both “the Agency “ and “the Client” shall be interpreted as references to the Photographer’s Client.
(b) For the purpose of this agreement “The Photographer” will mean the Author of the Photograph or Brian Bohannon, and shall where the context so admits include their respective assignees, sub-licensees and successor in title.
(c) “Photographs” and “Works” 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) All contracts verbal or written are only accepted on the basis that the Terms and Conditions of the Photographer are the only ones applicable.
(e) Other Terms and Conditions proffered by the Client are specifically excluded unless agreed to in writing or by verbal agreement beforehand by the Photographer.
(f) Where time is of the essence the Photographer entirely at its own discretion may accept an instruction given orally, in this event the Photographer shall accept no liability for any error in executing the order.
(g) 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.
(h) 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.
(a) The Author retains the entire copyright in the Photographs and Works at all times, throughout the World and in perpetuity unless explicitly assigned in writing and signed by the Photographer and the Client.
(b) To avoid confusion, where a ‘Buyout’ is requested, it shall be taken to mean ‘exclusivity’ and thus shall increase the value of the fee. A ‘Buyout’ will not transfer copyright to the Client, nor shall it mean in perpetuity.
3. OWNERSHIP OF MATERIALS.
(a) Title to all Photographs remains the property of the Photographer.
(b) When the License to Use has expired the Photographs must be re-Licensed by the Photographer before further use.
(c) Title to any materials used in producing the Works is not transferred to the Client upon payment of the invoice.
4. LICENSE TO USE.
(a) The License to Use comes into effect from the date of delivery of invoice, according to terms set forth on that invoice, and is provisional until payment in full of the relevant invoice(s).
(b) Unless otherwise stated in this Agreement, all licenses are non-exclusive and limited to English language use in the United States of America only and lasts for one year from the date of Licensor’s invoice.
(c) No use may be made of the Photographs before payment in full of the relevant invoice(s) without the Photographer’s express permission verbally or in writing.
(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 Agency is put into receivership or liquidation.
(e) Where restricted in the Agreement, permission to use the Photographs 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 Photographs may be used for other purposes. Where uses of an image are made which breach the license to use further charges will be made.
(f) Any reproduction rights granted are by way of license only and no partial or other assignment of copyright shall be implied.
(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 license granted shall immediately cease.
(a) Unless agreed to in writing on the License to Use and the Invoice no exclusivity is given or implied to The Agency and/or The Client.
(b) The Photographer retains the right in all cases to use or sell the Photographs.
(c) Exclusivity will not be unreasonably withheld but only on written agreement with the Photographer before work commences.
6. CLIENT CONFIDENTIALITY.
(a) The Photographer will keep confidential and will not disclose to any third parties or make use of information communicated to him/her in confidence for the purposes of the photography, save as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the commission.
(a) Client shall indemnify, defend and hold harmless Licensor and Licensor’s representatives from any and all claims, liabilities, damages and expenses of any nature, including attorney’s fees, investigation costs and court costs arising from or relating to Client’s direct or indirect use of the image, or in connection with Licensor’s reliance on any representations, instructions, information or materials provided or approved by Client. Licensor shall not be liable for general, consequential, incidental or special damages arising from this agreement, the service rendered, the images or any acts of omission by Licensor regardless of the circumstances of such omissions.
(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 or items depicted within any Works 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 shoot.
(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.
(f) 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, Brian Bohannon, their employees or agents or otherwise, and it is the Client’s responsibility to insure against such loss or damage.
8. FORCE MAJEURE
(a) In the very unlikely events of cancellation by the photographer or of total photographic failure, liability shall be limited to a full refund of any fees paid.
(b) The photographer will endeavour to put the client(s) in touch with another photographer in the event they are unable to attend on the assignment date due to any cause beyond their reasonable control e.g. sudden illness, injury, victim of crime, flooding, traffic conditions, vehicle breakdown etc.
(a) Client and Client’s representatives are jointly and severally responsible for full payment of all fees, charges and advances as set forth in this Agreement.
(b) Payment by the Client will be strictly within 90 days of the issue of the relevant invoice for the commissioned work.
(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.
(d) Payment confirms agreement to terms and conditions.
(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.
(a) Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.
(a) Unless otherwise specifically negotiated, Client shall pay 100 percent of Licensor’s fees, charges and expenses if Client requests that an image be reshot or a service redone unless such a request is the result of an image being lost or rendered unusable prior to delivery, because of a technical error such as defective materials or damage, or equipment or processing malfunction. In the event of such technical error Licensor will reshoot the image or redo the service at no additional fee, if Client advances and pays all charges, and has paid in full all fees and charges for the original image or service.
12. CANCELLATION & POSTPONEMENT.
(a) A booking is considered firm as from the date of confirmation and accordingly the Photographer will, at his/her discretion, charge a fee of cancellation or postponement.
13. RIGHT TO A CREDIT. (For publication, only.)
(a) The License to Use requires that either the Photographer’s name ‘© Brian Bohannon’ or ‘© Brian Bohannon Photography’ will be printed on or in reasonable proximity to all published reproductions of the Photograph(s), in print and online. The Photographer also asserts his/her statutory and moral right to be identified unless usage license specifies otherwise.
14. SUPPLY TO THIRD PARTIES.
(a) The license only applies to the Client and product stated on the License to Use.
15. ELECTRONIC STORAGE.
(a) 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.
Any action to enforce any term of this agreement or any matter arising out of this agreement shall be brought in the state of Licensor’s principal place of business. If Licensor prevails in any action brought to enforce the terms of this Agreement, Licensor will be entitled to recover actual attorney’s fees, court costs and all other non-reimbursable litigation expenses, such as expert witness fees and investigation costs.
17. MODIFICATION, GOVERNING LAW AND MISCELLANEOUS.
This Agreement constitutes the entire understanding and agreement between Licensor and Client regarding the image or service commissioned by Client. This agreement supersedes any and all prior written or verbal representations and agreements between Client and Licensor. No waiver or modification may be made to this Agreement unless in writing and signed by both Client and Licensor. Waiver of any one provision of this Agreement shall not be a deemed to be a waiver of any other provision of this Agreement. The formation, interpretation and performance of this agreement shall be governed by the laws of the state of Licensor’s principal place of business, excluding the conflict of law rules of that state.
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(If you don’t agree, please suggest whatever changes you propose.)