1.1 It is agreed that the following terms set out the total agreement made between the parties and that no variation or modification of this contract shall be effective unless agreed by both parties in writing.
2.1 In the following terms & conditions “the photographers” shall mean Toby Monaghan-Gray & Carl Middleditch, trading as “Big Idea Photography LTD”. “The client(s)” is the person or organisation to whom the invoice is addressed (whether or not the Client is acting for a third party).
2.2 For the purposes of this agreement, the following expressions shall have the following meanings: “Client Content” shall mean all materials and 3rd party services provided by the Client to Big Idea Photography for inclusion or incorporation into the Photographs or to be used in conjunction with the Photographs. “The Fees” shall mean the rate of payment for the provision of photographic services by Big Idea Photography to the Client as is communicated to the Client either through the website or email of Big Idea Photography or by any other means. The Fees shall include any third party Fees payable in the creation of the Photographs. “The Delivery” Date shall mean the date agreed by the Client and Big Idea Photography for delivery of the Photographs. “The Photographs” shall mean the photographic works requested by the Client and supplied by Big Idea Photography in accordance with this agreement. “The Shoot Date” shall mean the date agreed by Big Idea Photography and the Client upon which the Photographs will be created.“ Total Fees Estimate” shall mean any estimate of the fees for undertaking photographic works given to the Client by the Big Idea Photography.
3. CLIENT RESPONSIBILITIES
3.1 The Client will co-operate with, and act in good faith towards, Big Idea Photography and provide on request such source materials as are required to create the Photographs (“Client Content”) per the terms of the agreement.
4.1 The Client shall pay Big Idea Photography the Fees without deduction within 30 days of receipt of a valid invoice.
4.2 The Client shall provide Big Idea Photography with all such information and material as it may reasonably request for the purpose of generating a valid invoice for payment of the Fees, including, where required, the provision of purchase order references within the period of two (2) days following the Shoot Date.
4.3 Any Total Fees Estimate communicated to the Client by Big Idea Photography is an estimate only. The Fees shall be accurately determined after The Shoot based on actual time taken and may include additional expenses which may be less than, or more than, the Total Fees Estimate.
4.4 Big Idea Photography may charge additional Fees in accordance with its rates in the event of:
4.4.1 Delays or additional works caused or requested by the Client, including the clients failure to provide Big Idea Photography with required information, Client Content, instructions, media or approvals in a timely fashion.
4.4.2 Changes to the cost of labour, materials, services and other circumstances outside of Big Idea Photography’s reasonable control.
4.4.3 The Client requiring the supply of Photographs, goods and services in addition to those requested or any variations to the Photographs;
4.4.4 Agreed third party expenses.
4.5 If payment is not made in accordance with clause 4.1 above then Big Idea Photography may rescind this Agreement and recover damages, or, at their option, may exercise their statutory right to interest under the Late Payment Of Commercial Debts (Interest) Act 1998.
4.6 If any invoice issued to the Client is not paid by the Due Date, then all unpaid invoices issued to the Client become due of immediate effect, even if it is less than 30 days from the issue date, and that Big Idea Photography may consider these invoices as overdue when pursuing legal action for the recovery of said debts.
4.7 A fee of £50.00 may be made for each account reminder, duplicate invoice, or any other paperwork, correspondence or phone calls involved with the pursual of a debt. This fee is non-refundable, and represents the additional time spent pursuing overdue invoices.
4.8 Big Idea Photography reserves the right to suspend ongoing services, such as (but not limited to) the Downloadable Web Page or other distribution of Photographs, once any invoice issued to a Client becomes overdue, and also reserves the right to inform the reason of this to third parties to whom this suspension of service affects.
5. INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
5.1 All copyright, design right, registered designs, trade marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature, created or commissioned by Big Idea Photography belong to Big Idea Photography unless otherwise agreed in writing and signed by both Parties. Big Idea Photography may include within the Photographs reasonable copyright notice and credit.
5.2 The Client grants Big Idea Photography a non-exclusive royalty free license to use the Client Content for all purposes relating to this Agreement and in doing so warrants that it is fully entitled to grant Big Idea Photography these rights and that the Client Content(s) are free of racist, defamatory, obscene and other legally restricted material, including copyright restrictions.
5.3 The Client undertakes to Big Idea Photography to indemnify and hold harmless Big Idea Photography in full and defend, at its own expense, Big Idea Photography against all costs, damages and losses incurred by its use of the Client Content or breach of clause 5.2 above, including third party copyright breach.
5.4 Each Party undertakes that it will keep private and confidential any information supplied by either party in connection with this Agreement, or in connection with the Photographs and shall only disclose such information, or part thereof, with the other party’s prior written consent, with the exception of internal communications by employees and staff where necessary.
6.1 The 1998 Copyright, Designs, and Patents Act assigns copyright to Big Idea Photography. It is contrary to the Act to copy or allow to be copied photographically/electronically or by any other means a photograph created as part of this contract outside of the usage terms without the permission of the Big Idea Photography in writing.
6.2 Big Idea Photography hereby grants the Client an unlimited license to print, reproduce, distribute and share on social media, the photographs created as part of this contact. You may not manipulate or edit the images in any way, or grant sublicenses for the images unless expressly agreed upon in writing by both parties. You may not re-sell the Photographs in part or wholesale and doing so constitutes a breach of copyright. You may use the images for advertising or other commercial applications.
6.3 The license granted in clause 6.2 above shall apply only to the final image contained within the Photographs which Big Idea Photography was specifically requested to proceed with and not to any original ideas, concepts or proposals of Big Idea Photography pitched or suggested to the Client, all of which shall be retained by Big Idea Photography under clause 5.1.
6.4 Big Idea Photography reserves the right to display any images included in this contract in their studios, portfolios, literature, exhibitions, advertising and use on their website. No use of the images will be made by the Big Idea Photography for other commercial reason without the express written permission of the client.
7. DELIVERY, INSPECTION AND ACCEPTANCE
7.1 Big Idea Photography shall, on the Delivery Date, provide a digital download link to the client via email. If the Client requires delivery of the Photographs in any other format or by any specified method of delivery, the Client shall meet any additional costs incurred to by the request.
7.2 The Photographs shall only be treated as being defective if both the Client and Big Idea Photography agree that the Photographs are below the specific resolution communicated by the Client to Big Idea Photography (if any) or any commonly observed specific requirements are unsuitable for the required media in which the Photographs are intended to appear.
7.3 The Client shall not be entitled to claim that the Photographs are defective in accordance with clause 7.2 if:
7.3.1 the Client has already approved the Photographs, including by email.
7.3.2 The Client or its directors, agents, employees or any other person acting under its instructions has been active in the art direction applied to the Photographs.
7.4 The Client shall inspect the Photographs upon delivery and shall notify Big Idea Photography immediately if it wishes to claim that the Photographs are defective in accordance with clause 7.2 above whereupon Big Idea Photography shall, if such defect is proved, be given 5 days within which to remedy.
7.5 In the event that it is not possible for Big Idea Photography to remedy any defect in the Photographs in accordance with clause 7.4 above and before any deadline set by a third party for the delivery of the Photographs by the Client, the Client shall be entitled to reject the Photographs and to withhold Payment of the Fees.
7.6 If the Client fails to alert Big Idea Photography of any defects in the Photographs within five (5) days of delivery then the Client shall be deemed to accept the Photographs.
7.7 No photographs shall be delivered until any relevant invoices have been paid in full by the Client. Proof images will be provided until payment has been received.
8.1 In the event that the Client requires any change or alteration to the brief or Photographs, Big Idea Photography and the Client shall, prior to such change being effective or implemented, agree:
8.1.1 the nature of the Change;
8.1.2 the procedures for implementation of such Change;
8.1.3 any adjustments to the Delivery Date; and
8.1.4 the variation to the Fees.
8.2 Until such a time that any Change is formally agreed between the Client and Big Idea Photography, Big Idea Photography will continue to perform and be paid for the Photographs as if the Change had not been proposed.
8.3 Any and all Changes to the Photographs shall be reflected and accompanied by appropriate amendments to the Fees.
8.4 Big Idea Photography shall endeavor to make changes where possible; however, reserves the rights to reject changes based on technical restrictions or where Copyright may be breached by requested changes.
9. LIABILITY AND WARRANTY
9.1 Subject to Clause 9.2 below, Big Idea Photography’s liability for any loss or damage, direct or otherwise, shall not exceed the Fees invoiced by Big Idea Photography to the Client for the Photographs.
9.2 Nothing in this Agreement shall limit the liability of either party for death or personal injury caused by its negligence.
9.3 Big Idea Photography shall not be liable to the Client for any consequential loss or damage.
9.4 When instructions or advice are given or received orally by Big Idea Photography, it shall have no liability to the Client for any misunderstanding or misinterpretation, which may arise except in relation to fraudulent misrepresentations.
9.5 Big Idea Photography shall have no liability to the Client in respect of the Client Content. On completion of the Photographs the Client agrees to collect the Client Content within 2 months of completion of the works, failing which, Big Idea Photography may dispose of it as it sees fit.
10. TERMINATION AND CANCELLATION
10.1 Big Idea Photography shall be entitled to terminate this Agreement upon the Client’s material breach (including without limitation non-payment of any sum due) unless the Client remedies such breach within 7 days of its occurrence.
10.2 Big Idea Photography will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Big Idea Photography; including without limitation, internet outages, communications outages, fire, flood, war or act of God.
10.3 In the event that the Client wishes to cancel the creation of the Photographs by Big Idea Photography or the provision of photographic services in accordance with this Agreement (save in the event of a material breach by Big Idea Photography of a fundamental term of this Agreement) at any time, Big Idea Photography shall be entitled to recover the following proportions of the Fees:
10.3.1 where such cancellation is communicated to Big Idea Photography more than 48 hours in advance of the Shoot Date Big Idea Photography shall not be entitled to any proportion of the Fees;
10.3.2 where such cancellation is communicated to Big Idea Photography within the period between 48 hours and 24 hours in advance of the Shoot Date, Big Idea Photography shall, at its option, be entitled to recover 50% of the Fees;
10.3.3 where such cancellation is communicated to Big Idea Photography within the period of 24 hours before the Shoot Date, or if any such cancellation is not communicated to Big Idea Photography at all, Big Idea Photography shall, at its option, be entitled to recover 100% of the Fees;
10.4 During the course of this Agreement and for a period of 12 months afterwards, the Client shall not solicit the staff of Big Idea Photography or any person employed or engaged by Big Idea Photography in relation to its provision of services in the 6 months prior to expiry or termination of this Agreement, or entice them to transfer their employment or services.
11.1 Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
11.2 The Client shall not assign the benefit or burden of this Agreement without the prior written consent of Big Idea Photography.
11.3 No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
11.4 These Terms are made and shall be construed in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.