In the following Terms & Conditions “the Photographer” refers to Kasia Sowinska trading as “Kasia Sowinska Photoworks”. The client(s) shall be those persons defined as commissioning, buying, or using the Photographer’s works. Collectively they will be referred to as the “Parties”, both of whom agree to be bound by this Terms & Conditions.
This Terms &Conditions represents and constitutes the entire Agreement between the Parties, and supersedes and merges all prior mediations, agreements, and understandings, written or oral, with respect to all matters between two Parties.
1. OWNERSHIP OF THE PHOTOGRAPHS AND COPYRIGHTS
1.1 The entire copyright in the Photographs is retained by the Photographer at all times worldwide. 1.2 Title to all Photographs remains the property of the Photographer.
2. RIGHT TO A CREDIT
2.1 The Photographer has both – a moral right to be identified as the author of her work and a right to a credit (when possible) in accordance with sections 77-79 of the Copyright, Designs and Patents Act 1988. The Photographer shall be credited as ‘Kasia Sowinska Photoworks’.
3.EXLUSIVITY
3.1 The Client will be authorized to publish the Photographs to the exclusion of all other persons including the Photographer as stated in Licence to Use.
3.2 However, the Photographer retains the right in all cases to use the Photographs in any manner at any time and in any part of the world for the purposes of advertising or otherwise promoting her work.
3.3 After the exclusivity period indicated in the Licence to Use, the Photographer shall be entitled to use the Photographs for any purposes.
4.DATA PROTECTION AND CONFIDENTIALITY
4.1 Any information or data obtained by the Photographer for the purpose of the Assignment is kept in accordance with data protection principles set out in the Data Protection Act 2018.
4.2 The Photographer will keep confidential and will not disclose to any third parties or make use of material or information communicated to her in confidence for the purpose of the Assignment.
4.3 It shall be sole responsibility of the Client to arrange for any third party involved in the Assignment to enter into confidentiality agreement.
4.4 The Photographer will not be liable for breach of confidentiality by any third party.
5.CONDUCT OF THE SHOOT
5.1 The shoots will be arranged on dates and in period of time mutually agreed between the Photographer and the Client.
5.2 During the shoot the Photographer will take on account of the Client’s reasonable instructions in respect to the brief.
6.USE
6.1 All Photographs are to be used in accordance with purpose, period of time and territory stated in the Licence to Use. No other use may be made of the Photographs without the Photographer’s express permission. The permission must be obtained from the Photographer before the Photographs are used for any other purpose or territory, or after the Licence to Use has expired.
6.2 The Photographer’s permission must be obtained before use of the Photographs for any other purpose than the ones stated in the Licence to Use, for example in relation to another product or sublicensing. Permission to use the Photographs for purpose outside of terms of Licence will be granted upon agreement and a further fee.
6.3 Manipulation of the Images or use of only a portion of the Photograph may only take place with the permission of the Photographer.
6.4 Licence to Use comes into effect from the date of issued relevant invoice. No use may be made of the Photographs before payment is received in full by the due date of the relevant invoice without the Photographer’s expressed permission.
6.5 Any permission given to prior use will be automatically revoked if the payment is not made by the due date in full.
6.6 When the Licence to Use has expired an additional charge has to be agreed with the Photographer for extended usage.
6.7 Licence to Use is a subject to these terms and conditions.
7.ESTIMATES
7.1 Estimates provided by the Photographer are based upon the information provided by the Client in advance and on the Photographer’s fee. Changes to Client’s requirements made before or during the shoot may increase the final Fee and Expenses.
7.2 The Estimates must be agreed upon by both parties before the shoot takes place otherwise the shoot date shall be deemed to be acceptance of the Estimates, unless agreed otherwise in writing.
8.PAYMENTS
8.1 The relevant invoice must be paid in full within 30 of the date of issue.
8.2 If the payment is not made within 30 days or is made after the due date, the Photographer reserves rights to charge an interest fee in the amount of 20% of a relevant invoice monthly, until the payment is made in full.
8.3 All payments are due in pound sterling unless expressly stated otherwise. The Photographer’s bank details will be provided on the invoice.
8.4 In the event that any payment is collected at law or through an attorney, or under advice therefrom, or through collection agency, the Client agrees to pay all costs of collection, including, without limitation, all courts costs, and reasonable attorney’s fees.
9.EXPENSES
9.1 All expenses figures provided in advance of a shoot are estimates only and the Client should allow 10% contingency budget in all cases.
9.2 The Photographer will endeavour to work within the agreed Estimates cost but individual costs within Estimates may vary at her discretion to enable the most effective realization of the brief.
9.3 Where extra expenses or time are incurred by the Photographer as a result of alternations to the original brief by the Client or at their request, the Client shall give an approval to and be liable to pay such extra expenses or fees in addition to the agreed Estimates.
9.4 Receipts for expenses will be provided on Client’s request.
10.INDEMNITY
10.1.1 It is the Client who must satisfy him/herself that all model releases or consents which may be required for reproduction, are obtained in relation to the Assignment and it is acknowledged that the Photographer gives no warranty or undertaking that any such model releases or consents have been or will be obtained.
10.2 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 shoot.
10.3. The Client shall indemnify the Photographer against all liabilities, claims, costs, damages and expenses claimed or unaccrued (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 and consents or arising out of use of the Photographs by the Client outside of the Licence to Use or otherwise as a result of any breach by the Client of these Terms & Conditions.
11. LIABILITY
11.1 The Photographer shall not be liable to the Client for any loss of profit, contracts, business, revenues production or for any indirect, special, or consequential loss, damage, costs, expenses, or other claims caused by negligence of the Photographer which arise in connection with the Assignment.
11.2 Photographer’s maximum aggregate liability for all losses, damages, costs, claims, and expenses arising out of or in connection to these Terms & Conditions shall in any event be limited to the total of the agreed fees paid to the Photographer in relation to the relevant Assignment.
11.3 Nothing in these Terms & Conditions excludes or limits the liability of the Photographer for death or personal injury cause by the Photographer’s negligence.
11.4 The Photographer 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.
12.DELIVERY AND ACCEPTANCE
12.1 Following completion of the shoot(s) the Photographer will deliver the Photographs to the Client as soon as reasonably practicable and in an agreed format to enable the Client to select the Licenced Photographs.
12.2 Unless a rejection fee has been agreed in advance, the Client has no right to reject the Photographs based on style or composition.
13.CANCELLATION AND POSTPONEMENT
13.1 When Assignment is agreed, if it is subsequently cancelled by the Client, a cancellation fee will be charged to the Client according to the following schedule:
13.1.1 When the Client cancels agreed Assignment within less than 7 days of any confirmed date, a fee of 20% of the booked time rate will be charged.
13.1.2 When the Client cancels agreed Assignment within less than 24 hours of any confirmed date, a fee of 50% of the booked time rate will be charged.
13.1.3 When the Client cancels agreed Assignment on the day of confirmed date, the full fee will be charged.
13.2 When the agreed Assignment is postponed by the Client, the Photographer will charge a postponement fee.
13.3 In addition, the Client may be charged for any expenses incurred by the Photographer as a result of cancellation or postponement by the Client.
13.4 The Photographer will endeavour to put the Client in touch with another photographer in the event the Photographer is unable to attend on agreed date due to any cause beyond their reasonable control, such as illness, injury, victim of crime etc. In the event of such cancellation by the Photographer, or in the event of very unlikely total photographic failure, liability shall be limited
to a full refund of any fees paid to the Photographer by the Client at that time.
14. DISPUTES
14.1 Any dispute arising from this Agreement shall be resolved through informal mediation. Such informal mediations commence upon written notice from one Party to the other Party.
15. TERMINATION
15.1 Either Party will be entitled to terminate these Terms & Conditions immediately by giving a written notice to the other, if the other party:
15.1.1 Commits a material breach of these Terms & Conditions and fails to remedy the breach (if possible) or
15.1.2 is the subject to bankruptcy order.
16. GOVERNING LAW
16.1 This agreement shall be governed in accordance with the laws of Scotland.
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.