APPLICATION OF TERMS
These terms and conditions will apply to all Assignments undertaken by the Josh Edward Media for the Client and to all Usage Licences 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.
Any Estimates provided by Josh Edward Media are based upon the information provided by the Client in advance of preparing the Estimate. If there are any Changes to the requirements for an Assignment before or during a shoot may increase the Fee and expenses. All 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. Unless otherwise agreed in writing the Client’s agreement of shoot date(s) shall be deemed to be acceptance of the Estimate. In the event that no Base Usage Rate has been stated, it will be equivalent to the Josh Edward Media’s day shoot fee.
CONDUCT OF THE SHOOT
The shoot will be arranged on date(s) mutually agreed between the Parties. During the shoot the Photographer will take account of the Client’s reasonable instructions in respect of the shoot brief. If the Client is not present during the shoot then Josh Edward Media’s interpretation of the brief shall be deemed acceptable to Client.
OVERTIME AND ANTISOCIAL HOURS
A normal day is up to 8 hours (including 1 hour for lunch) between 9am and 6pm on any Working Day. Any hours worked outside a normal day will incur additional overtime fees for Josh Edward Media, crew and facilities. These will be agreed between the Parties.
CANCELLATION OF SHOOT
If a confirmed shoot is cancelled or postponed for reasons outside the control of the Josh Edward Media (including unsuitable weather / light), Josh Edward Media reserves the right to charge a cancellation fee at the following rates together with all incurred expenses:
On Shoot Duration of two days or less:
On Shoot Duration of two days or less:
Cancellation on less than 3 Working Days’ notice, 100% of Fee + all expenses; or
On 3 to 6 Working Days’ notice, 75% of Fee + all expenses; or
On more than 6 Working Days’ notice, 50% of Fee + all expenses.
On Shoot Duration in excess of 2 days and on notice equivalent to:
On Shoot Duration in excess of 2 days and on notice equivalent to:
The Shoot Duration or less,100% of Fee + all expenses; or
More than the Shoot Duration but not more than twice the Shoot Duration, 75% of Fee + all expenses; or
More than twice the Shoot Duration, 25% of Fee + all expenses.
ACCEPTANCE & DELIVERY
Following completion of the shoot Josh Edward Media will deliver the Material to the Client as soon as reasonably practicable and in the agreed format to enable the Client to select the Licensed Images. Subject to any previously agreed deadlines for post-production work Josh Edward Media will carry out any such work required as soon as reasonably practicable but cannot guarantee urgent turnaround. 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.
STORAGE OF MATERIAL
The Client shall ensure that it takes appropriate steps to keep safe an exact digital copy of all Material supplied for the duration of the Usage Licence. The Josh Edward Media will not be responsible for archiving any Material unless by prior written agreement with the Client. Material may not be transmitted to any third party, including for the avoidance of doubt any associated or branch office of the Client, without the written permission of Josh Edward Media. Upon publication of the Licensed Images or any of them and on the Photographer’s request the Client shall supply to Josh Edward Media 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 & USAGE LICENCES
The entire copyright of all physical materials created by or for, will be always retained by Josh Edward Media. The Client is responsible for informing the Advertiser of the extent and limitations of all Usage Licences.
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 Josh Edward Media in advance. 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). The Client acknowledges that such estimates do not include provision for any third party rights which are the responsibility of the Client. The Client shall procure that the Advertiser requests any necessary extended or additional usage licence(s). Any extended or additional use made without permission shall attract an additional fee.
All Usage Licences granted by Josh Edward Media to the Client shall be exclusive to the Advertiser and the Client unless otherwise agreed in writing. 2 years after the shoot or the expiry of the Usage Licence(s) (whichever is later) Josh Edward Media can grant any other licence in respect of the Material to any third party. After expiry of the exclusivity period Josh Edward Media shall make such use of the Material including the Licensed Images as he/she sees fit.
Nothing in this clause shall prevent Josh Edward Media 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 Josh Edward Media shall first obtain the Client’s consent, such consent not to be unreasonably withheld. Josh Edward Media 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
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 Josh Edward Media on request. Estimated model fees cover modelling time only and the Client shall be responsible for clearing model usage unless otherwise stated on the Estimate. Items created specifically for the shoot shall remain the property of their creator unless agreed otherwise. Josh Edward Media shall not be responsible for obtaining any clearances in respect of third party copyright works, trade-marks, 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.
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.
All expenses and production costs must be paid in advance of the shoot unless otherwise agreed in writing and such invoices are due on presentation. All other invoices must be paid within 30 days of the date of issue. Josh Edward Media 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. If there is a delay of one month or more between agreed pre-production work and the shoot, Josh Edward Media reserves the right to invoice the Client for the pre-production element of the Fee and for any expenses already incurred by the Photographer. Usage Licence and any third party fees negotiated by Josh Edward Media are payable regardless of whether Licensed Images are in fact used by the Client or the Advertiser. All payments are due in pounds sterling unless expressly stated otherwise.
All expenses figures provided in advance of a shoot are estimates only and the Client should allow a minimum 10% contingency budget in all cases. Josh Edward Media 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. Receipts for expenses can only be provided if requested prior to shoot confirmation. Provision of receipts will incur an accountancy charge of 1.5% of total costs and fees incurred in respect of the Assignment. Where extra expenses or time are incurred by Josh Edward Media 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 Photographer’s normal rate.
RETURN OF MATERIALS
Within 30 days of expiry of any Usage Licence the Material must be returned to the Photographer in good condition and any digital files stored by the Client and the Advertiser must be deleted.
The Client shall indemnify Josh Edward Media 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.
EXTENT OF LIABILITY
Josh Edward Media 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 Josh Edward Media, Josh Edward Media’s employees, agents or sub-contractors or otherwise) which arise out of or in connection with the shoot. Josh Edward Media’s maximum aggregate liability for all losses, damages, costs, claims and expenses however or whenever arising out of or in connection with these Terms shall in any event be limited to the total amount of the fees paid to Josh Edward Media in relation to the relevant Assignment. Notwithstanding the above, nothing in these terms excludes or limits the liability of Josh Edward Media for death or personal injury caused by Josh Edward Media negligence or that of his/her employees, agents or sub-contractors, for any fraudulent statement or act or for any matter which it would be illegal to exclude. Josh Edward Media hereby disclaims any warranties, conditions and other terms on or relating to the services hereunder or any parts thereof which might otherwise be implied whether by statute, law, custom, course of dealing or otherwise, including without limitation any warranty, condition, or other terms of merchantability, quality, fitness for purpose or non-infringement to the fullest extent permitted by law.
Josh Edward Media 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 Josh Edward Media to carry out his/her obligations in relation to the Assignment. 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. Josh Edward Media will not be liable for any breach of confidentiality by any third party.
Either party will be entitled to terminate these Terms immediately by giving written notice to the other if the other party, 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 is the subject of a bankruptcy order, becomes insolvent, makes any arrangement or composition with or assignment for the benefit of its creditors, if any of the other party’s assets are the subject of any form of seizure, the other party goes into liquidation either voluntary (otherwise than for reconstruction or amalgamation) or compulsory, a receiver or administrator is appointed over the other party’s assets.
EFFECTS OF TERMINATION
On termination or expiry of these Terms for whatever reason, The Client shall pay all sums due and owing the date of which will be automatically accelerated to the date of termination. 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.
Josh Edward Media 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.
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.
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).
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 email, in which case it shall be deemed to have been received when transmitted, or, if this falls outside business hours in the place of receipt, when business hours resume.
Entire Agreement and Variation: These Terms and the Estimate constitute the entire agreement between the parties with respect to their subject matter.
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.
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.
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.
Law and Jurisdiction: These Terms are governed by the laws of England & Wales and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of England & Wales.