Terms & Conditions
1. Definitions
In these terms and conditions the following definitions and rules of interpretation apply:
“Agreement” and “Contract” refer to this duly executed contractual obligation between parties;
“Assignment” means a piece of work to be undertaken by the Photographer under the terms of this agreement which is fully described as to terms and scope in the Order Form;
“Confidential information” means all information about the parties, including: information created or arising from this agreement; information, comment or implication published on any Internet social medium; information which is disclosed to the Photographer by the Client and vice-versa pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Client”, “you” and “your” refer to the Client, whose details are set out in the Order Form, and its representative;
“Client Representative”, “Agent”, refer to the person nominated by the Client who shall be authorised to represent him and his interests and give accurate instructions to the Photographer and shall fully coordinate with the Photographer at the Shoot;
“Photographer”, “Artist”, “Julien”, “Julien Tavel”, “Photography Team”, “us”, “we”, and “our” refer to JXT PHOTOGRAPHIC LTD, a Private Limited Company registered in England and Wales under Company Number 11617651 whose registered office is at 119 The Hub 300 Kensal Road, London, United Kingdom, W10 5BE;
“Including” means “including, but not limited to”;
“Working Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the United Kingdom;
“Data Protection Legislation” means: unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently; any legislation which succeeds the GDPR;
“Event”, “Session”, “Shoot”, and “Photo-shoot” refer to the hired photographic session commissioned by the Client as per the details described in this agreement and which is fully described as to the terms and scope in the Order Form;
“Equipment” means the items of equipment listed in the Order Form and all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it;
“Expenses” means costs incurred by the Photographer in direct relation to the provision of his services;
“Fee” means all money payable by the Client to the Photographer, however described, for work on the Assignment;
“Initial Payment” and “Booking Fee” means the sum payable in advance of the Photo Shoot by the Customer as detailed in the Order Form;
“Late Payment Fee” means a sum or sums which shall be payable by the Client in respect of the late payment of any money due under this agreement at the rate of 5 per cent above the base rate from time to time of the Bank of England from the due date until receipt of payment;
“Licence” means a non-exclusive, temporary, non-transferrable, licence granted by the Photographer to the Client to use the Selected Photographs for commercial purposes within a Project under Clause 8;
“Model Right”, “Model Rights” means any right of a person to the privacy of his personal image or other feature by which he could be identified. It also means a similar right in respect of any building or thing owned by any person;
“Order Form”, “Order” means the order form, order, estimate, quote, quotation, invoice or other document attaching and attached to these Terms and Conditions, as delivered by hand or recorded delivery by e-mail to the Client or the Client Representative.
“Payment Schedule” means the payment schedule set out in the Order Form.
“Photograph”, “Photographic Material”, “Video”, “Film”, “Media”, “Deliverable” and “Image” refer to any photographic materials or other media being produced out of this Agreement by the Photographer during the Photo Shoot;
“Project” means a particular use to which the Customer intends to put the Selected Photographs;
“Quote” means a document submitted by the Photographer to the Client prior to the Date of this Agreement setting out the required Deposit, Fee and any anticipated Expenses;
“Shoot” means the occasion when the Photographer acts on the instructions set out in the Order Form;
“Rejection Fee” means a sum agreed at the time of Ordering which shall be payable by the Client in the event that the Client chooses to reject the Images entirely;
“Rescheduling Fee” means a sum agreed at the time of Ordering which shall be payable by the Client in the event that the Client chooses to reschedule the Time and Date of the Event, as set out in the terms below;
“Royalty Fees”, “Licensing Fees” means the fees payable on a per-Project basis for the licensed use of the Selected Images; and
“Selected Images” means the Images chosen by the Client from the proofs made available to them which shall be licensed under this Agreement;
“VAT” means value added tax chargeable under the Value Added Tax Act 1994;
1.1.
Unless the context otherwise requires, each reference in this Agreement to:
1.1.1.
“writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.1.2.
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.1.3.
“this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.1.4.
a Schedule is a schedule to this Agreement; and
1.1.5.
a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.1.6.
a “Party” or the “Parties” refer to the parties to this Agreement.
1.2.
The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.3.
Words imparting the singular number shall include the plural and vice versa.
1.4.
References to any gender shall include the other gender.
1.5.
References to persons shall include corporations.
2. Entire agreement
2.1.
This agreement contains the entire agreement between the parties and supersedes all previous agreements and understandings between the parties.
2.2.
Each party acknowledges that, in entering into this agreement, he does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
2.3.
Nothing in this agreement shall create a partnership, joint venture, agency or other relationship between the parties, other than the contractual relationship expressly provided for in this agreement.
2.4.
Neither party shall have, nor represent that he has, any authority to make any commitment on another party’s behalf, except as provided in this agreement.
2.5.
Nothing herein contained will contemplate or constitute an agent or employee relationship and neither the Photographer nor Client will have any authority to bind the other in any way.
3. Warranties for authority
3.1.
Each of the parties warrants that he has power to enter into this agreement and has obtained all necessary approvals to do so.
3.2.
The Photographer warrants and undertakes that he is not aware of anything within his reasonable control which might or will adversely affect his ability to fulfil his obligations under this agreement.
4. The contract
4.1.
The Photographer agrees to provide the services to complete the Assignment for the Fees set out in the Order Form.
4.2.
The Photographer is registered for VAT, GB308781584.
4.3.
This is an umbrella agreement which regulates each Order Form separately.
4.4.
A contract to undertake each Assignment is made when the Client makes payment of the deposit specified in the Order Form.
4.5.
The Client agrees to provide accurate, timely and complete information and fully cooperate with the Photographer to enable him to perform his part of this contract.
4.6.
With effect from the Date of the contract the Client shall nominate a key person or Client Representative who shall be authorised to represent him, to give instructions to the Photographer and shall fully coordinate with the Photographer at the Shoot.
4.7.
The Photographer agrees that he will fully cooperate with the authorised representative to perform his part of the contract.
4.8.
In the event that the Client rejects the Images as a result of negligence on behalf of the Client Representative on the day of the Shoot, all fees agreed upon in this Agreement shall withstand payable to the Photographer.
4.9.
If the Client’s representative is not physically present on the day of the Shoot, the Photographer’s interpretation will be deemed acceptable.
4.10.
If the Event is cancelled, delayed or the Client makes a significant change to the venue, date or activities then the Photographer will try to perform his obligations under the same terms as set out in this agreement. However if it does happen then the Photographer will not be bound and may refuse to provide his services under changed circumstances.
4.11.
Nothing in this contract shall prevent the Photographer from entering into a similar contract with any other person provided that the date of providing services on any other contract does not overlap with the agreed time and date of the Client.
5. The assignment
5.1.
The work under each Assignment shall be set out in the Order Form. The Order Form will describe, among other data:
5.1.1.
Event;
5.1.2.
Date;
5.1.3.
Latest time when Photographer is required to start work;
5.1.4.
Media;
5.1.5.
Location one;
5.1.6.
Location two;
5.1.7.
Latest attendance time required;
5.1.8.
Arrangements agreed in relation to special travel, accommodation and subsistence as may be required.
6. Fee and payment
6.1.
The Client agrees to pay the Fees set out in the Order Form.
6.2.
The Client shall pay a deposit (the “Deposit”) of £ [deposit sum] at the time of entering into this agreement.
6.3.
The Deposit is non-refundable if the Client changes the Order Form significantly.
6.4.
Payment shall be made by bank transfer or any other way agreed between the parties.
6.5.
The Photographer reserves the right to charge the Client an additional interest, assessed monthly from the first day of the missed payment deadline, at a statutory rate of 8% plus Bank of England base of 0.5%, totalling 8.5%, according to the Late Payment of Commercial Debts (Interest) Act 1998 in case of late payment of any money due under this agreement. In the event of any missed payments, all invoices become due immediately, including the remaining unpaid balance of the Total Price under this Agreement.
6.6.
No photographic materials or Images will be released until the agreed upon amount is paid in full per the payment schedule outlined in this Agreement. The Client will use the photographic materials in accordance with a Commercial License, the terms of which will be set out in the Order Form.
6.7.
For location bookings, If the Artist on location is prevented from working another booking, half the Artist’s Fee is to be paid.
6.8.
Overtime rates apply after 10 hours. The Artist’s overtime rate is a time and a half an hour after 10 hours, as calculated based on the confirmed Artist Fee for the Shoot.
6.9.
If the Client chooses to pay by foreign account wire transfer, the cost of incoming wire transfer fees will be added to the invoice.
7. Cancellation, Rescheduling and Late Arrival
7.1.
If the Client fails to show, provide appropriate access and materials on the day of the Event (including but not limited to models, props), the entire Photographer’s Total Fee is due immediately.
7.2.
The Client shall pay 50% of the Artist’s Fee if the Client cancels or postpones a confirmed Shoot day within 5 business day’s prior notice.
7.3.
The Photographer reserves the right to charge the Client a Rescheduling Fee of 5 per cent (%) per annum of the agreed upon Fee, should the client reschedule the Time and Date of the Shoot within 7 days of the original scheduled Time and Date of the Event.
7.4.
Any Client that arrives late to the session will have the amount of time late deducted from the time allotted for the session. The Photographer will not provide a partial refund or other compensation for the time deducted from the Session due to late arrival of the Client.
7.5.
If the Client specifies weather conditions for the Shoot day and postponement is required due to weather, the Client shall pay the Artist’s Fee in full immediately unless postponement is made prior to departure to location, in which event the Client shall pay 50% of the Artist’s Fee for the confirmed Shoot day.
7.6.
The Client shall pay the Artist’s fee in full if the Client cancels or postpones a confirmed Shoot day with less than 5 business day’s notice.
8. Project management procedure
8.1.
After the payment of the Deposit the Photographer will communicate with the Client to make detailed arrangements for the Assignment.
8.2.
If the Client provides a list of specific people or scenes or events of which he requires Images, the Photographer will do his best to include those within the Assignment.
8.3.
The Client will be responsible for informing people that photographs, videos and/or media will be taken and recorded at the Event, and will indemnify the Photographer for all costs which might flow from a complaint by any person that the Photographer did not have permission to photograph that person.
8.4.
Within 7 working days after the date of the Event, the Photographer will send unprocessed proof copies of the Images in an appropriate medium for the Client to choose pre-approved quantities and sizes of reproduction in print or other media. Should the client require more proof copies than originally confirmed, further Proofing Expenses and extended deadlines may apply.
8.5.
The Client agrees to make his choices and inform the Photographer within 14 days of having received the proof copies.
8.6.
The Photographer shall deliver the Images as ordered within 21 days of the Client having made the choices.
8.7.
Within 30 days of having received the prints or other media recording the Event, the Client shall pay the Photographer the balance of all money due under this agreement, as set out in the Order Form.
9. Post-Processing
9.1.
The Photographer reserves the right to charge additional fees for post-processing and retouching as well as for quicker turnaround times or expedited process requests in addition to additional requested processing services. These will be set out in the Order Form.
9.2.
The Client should make additional processing requests with sufficient time to allow for deadlines to be met and for normal delays.
9.3.
The Photographer retains the right of discretion in post-processing of the photographic materials released to the Client.
9.4.
The Photographer does not retain archives of the photographs.
9.5.
The Photographer will not be held responsible for delivery delays due to the fault of manufacturing and/or delivery services arising out of his control.
9.6.
The Photographer reserves the right to charge an additional Fee to the Client, subject to negotiation, should the Client request additional Images or Deliverables that were not previously set out in the Order Form before the date of the Event.
10. Artistic Rights
10.1.
All photographic materials, including but not limited to negatives, transparencies, proofs, and previews, will be the exclusive intellectual property of the Photographer. If necessary, the Client will execute any documents and undertake any other reasonable action necessary to effectuate or memorialise ownership of all intellectual property by the Photographer.
11. Indemnification
11.1.
Client agree to indemnify, defend and hold harmless the Photographer and his affiliates, employees, agents and independent contractors for any injury, property damage, liability, claim or other cause of action arising out of or related to Services and/or product(s) the Photographer provides to the Client.
12. The License of Images to Client
12.1.
The Client acknowledges that the Photographer owns all right, title and interest in and to the Images and that the Client has no right to use any of them outside the express terms of this agreement.
12.2.
Money paid to the Photographer includes a fee for the grant of a licence in the terms of this paragraph. The licence arises only after the Client has paid the Photographer the money due under this agreement.
12.3.
The licence is personal, temporary, irrevocable, non-transferable and non-sub-licensable.
12.4.
The licence is restricted so that unless the Photographer gives written authorisation the Client may not copy, edit, retouch or alter any Image created by the photographer, nor permit any other person to do so, without his permission in writing. For the avoidance of doubt, Images may not be used for commercial sale by some person other than a party to this contract.
12.5.
So far as any goodwill is generated by the Client’s use of the Images it shall accrue to the benefit of the Photographer.
12.6.
The Photographer reserves the right to make reproductions of Images created during assignments for marketing, promotional, competition and editorial purposes.
13. The License of “Model Rights” to Photographer
13.1.
The Client grants all his Model Rights to the Photographer to enable him to carry out the Assignment.
13.2.
The Client agrees that the Photographer may use his personal Model Rights (but not those of any other person present) in the form of Images taken in this Assignment, only:
13.2.1.
to market his business as a photographer;
13.2.2.
for sale of a licence to a third party for commercial use of the Images;
13.2.3.
for sale of a licence to any bona fide publisher of related material.
14. Photographer’s obligations
14.1.
In working on the Assignment and in provision or delivery of any outcome, the Photographer will comply with:
14.1.1.
the Order Form;
14.1.2.
standard ISO/TC42.
15. Use of sub-contractors
If the Photographer wishes to perform any or all of his obligations under this agreement through agents or sub-contractors, the following provisions apply:
15.1.
the Photographer must first obtain the written consent of the Client to the name of any sub-contractor. The Client is under no obligation to give consent nor to give any reason for refusal;
15.2.
the Photographer remains liable for the performance of this contract;
15.3.
so far as work under this contract is sub-contracted, it shall be supervised personally by the Photographer;
15.4.
the Client agrees that the Photographer will not liable for any actions committed by the sub-contractor, or for products provided by such sub-contractor;
15.5.
the Client agrees to indemnify and hold harmless the Photographer for the same and acknowledges the need to communicate with the sub-contractor regarding any allergies to any product provided by the Client and agrees to communicate with sub-contractor regarding the provision of services by the Client;
15.6.
The Client will retain full responsibility for failing to provide feedback on any services prior to or during the session. The session will not be re-photographed due to dissatisfaction in these services without prior notice.
16. Confidentiality
16.1.
The parties are aware that in the course of the performance of the Assignment they will each have access to and be entrusted with Confidential Information of the other. Accordingly, they undertake in respect of Confidential Information of the other of them, that both during and after completion of the Assignment, they will:
16.1.1.
except as provided in this agreement, not divulge to any person whatsoever, or otherwise make use of any Confidential Information;
16.1.2.
not use the Confidential Information in any way for himself or any other person, except in a way that is authorised by this agreement or by the proper authority of the other of them;
16.1.3.
not publish Confidential Information on any social media.
17. Limitation of liability
17.1.
All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warranty or term cannot be excluded, then this sub paragraph will be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
17.2.
The Photographer shall not be liable to the Client for any loss or expense which is:
17.2.1.
Indirect or consequential loss; or
17.2.2.
Economic loss or other loss of turnover, profits, business or goodwill; or
17.2.3.
Loss of amenity represented by the Client having no visual record of an Event.
17.2.4.
Loss or damage suffered by the Client as a result of an action brought by a third party.
17.2.5.
Loss or damage suffered by the Client as a result of death or personal injury, however it arises, before, during or after the Event.
18. Duration and termination
18.1.
Work on the Assignment shall continue until terminated:
18.1.1.
by completion of the Assignment and payment to the Photographer; or
18.1.2.
immediately by the Photographer if the Client fails to pay any sum due within 30 days of the date of submission of an invoice;
18.2.
Despite termination of this agreement for whatever reason, all the provisions that are intended to operate or have effect after termination or expiration shall continue to be fully valid and effective.
18.3.
Without regard to the reason why this agreement ends, the Client will pay the Photographer for all work done to the time the notice of termination is received by the Photographer, calculated to the nearest one hour.
19. Uncontrollable events and Force Majeure
19.1.
Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond his or her reasonable control.
19.2.
If any uncontrollable event delays or prevents the performance of the obligations of either party for a continuous period of more than two months, the other party may give notice to terminate this agreement. The notice must be specifying a date of at least 7 days ahead, when the termination will take effect.
19.3.
A termination notice is irrevocable unless both parties agree to re-instate this agreement.
19.4.
If the agreement is terminated, all money due from one party to the other becomes due immediately.
19.5.
The party claiming to be affected by an uncontrollable event will take all reasonable steps to fulfil his obligations under this agreement despite the uncontrollable event.
20. Termination
20.1.
This agreement will terminate in the event that either Party materially breaches any portion of this agreement. Such termination will take effect immediately after 14 calendar days after notice of the breach from one party to the other. Both parties will have the right to notify the other of their intent to take substantial steps to cure any breach. If such notice is delivered, the Agreement will not terminate, unless such substantial steps do not occur.
20.2.
This Agreement will terminate in the event of bankruptcy or judicial or administrative declaration of insolvency of the Photographer or the Client that relate to any duty of performance under this Agreement.
21. Safe Working Environment
21.1.
In a situation where the Client creates an unhealthy, stressful, negative, unethical, emotionally difficult, or constraining working relationship with the Photographer, such that the Photographer feels they can no longer do their job effectively for the Client, the Photographer has the right to exit this Agreement and must refund all monies paid by the Client, including any payments remitted.
21.2.
The Client agrees to undertake the best efforts to treat the Photographer and the Photographer’s staff with respect and dignity and that the Photographer is provided with a safe working environment. Should an issue arise, the Photographer will make reasonable effort to contact the designated Client Representative to handle the matter. If the situation is not remedied in a reasonable amount of time, the Photographer retains the right to cancel the remainder of the session and all monies will be forfeited without further responsibility by Photographer.
21.3.
Safe working environment issues include but are not limited to guests, attendees or other vendors committing any instances of sexual harassment, violence, threats, or other similar behaviour that would lead a reasonable person to feel unsafe in such an environment. In the event of such cancellation, the Client will not be entitled to any refund.
22. Miscellaneous Matters
22.1.
No amendment or variation to this agreement is valid unless in writing, signed by each of the parties or his authorised representative.
22.2.
The Photographer takes Client’s privacy seriously and will only use his personal data in accordance with the Data Protection Act 2018 as fully described in Schedule 2 of this agreement.
22.3.
If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
22.4.
Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.
22.5.
No failure or delay by any party to exercise any right, power or remedy will operate as a waiver nor indicate any intention to reduce that or any other right in the future.
22.6.
The parties agree that electronic communications satisfy any legal requirement that such communications be in writing.
22.7.
In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
22.8.
This agreement does not give any right to any third party under the Contracts (Rights of Third Parties) Act 1999 / Contracts (Rights of Third Parties) (Scotland) Act 2017 or otherwise, except that any provision in this agreement which excludes or restricts the liability of the directors, officers, employees, subcontractors, agents and affiliated companies of a party, may be enforced under that act.
22.9.
Any communication to be served on either of the parties by the other shall be delivered by hand or recorded delivery by e-mail. It shall be deemed to have been delivered:
22.9.1.
If delivered by hand: on the day of delivery;
22.9.2.
If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.
22.10.
The validity, construction and performance of this agreement shall be governed by the laws of England and Wales / Scotland / Northern Ireland and the parties agree that any dispute arising from it shall be litigated only in that country.
22.11.
Any cause for complaint should be reported to the Artist or its representative or agent. Complaints cannot be considered in retrospect.
23. Variation
23.1.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
24. Rights and Remedies
24.1.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
25. Severance
25.1.
If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
26. Jurisdiction
26.1.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).