Terms & Conditions
I. Application
1. The following Standard Terms and Conditions of Delivery and Business (hereinafter referred to as the Standard Terms and Conditions) shall apply to all of orders, offers, deliveries and services executed by Adam von Mack Photography Ltd. (hereinafter referred to as “the photographer”).
2. They shall be deemed to be binding on both parties upon acceptance of the photographer’s delivery, service or offer by the customer, however no later than upon the photographic material being accepted for publication.
3. If the customer does not accept these Standard Terms and Conditions, it shall lodge written notification to this effect within three work days. Any alternative Standard Terms and Conditions on the part of the customer are hereby rejected. Alternative Standard Terms and Conditions on the part of the customer shall be deemed to be void unless the photographer agrees in writing to be bound by them.
4. In the absence of any express reference to the contrary, these Standard Terms and Conditions shall also apply to all of the photographer’s future orders, offers, deliveries and services under the ongoing business relationship notwithstanding the absence of any express reference to them.
II. Commission products
1. Any cost estimates provided by the photographer shall be given without engagement. If any increase in costs occurs during production, the photographer shall only report such increase when it becomes evident that the original estimate of the total costs is likely to be exceeded by more than 15 %. If the planned production period is exceeded for reasons beyond the photographer’s control, additional remuneration shall be paid on the basis of the agreed time-based fee or in the form of a reasonable increase in the flat-rate fee agreed upon.
2. The photographer may commission third party services which are required for the execution of the production on behalf and for the account of the customer and with the customer’s authorisation.
3. Subject to any other provisions, the photographer shall be responsible for selecting the photographs to be presented to the customer for approval at the conclusion of production.
4. The photographs shall be deemed to have been duly accepted in accordance with the terms of the contract and be free of any faults unless notification to the contrary is served upon the photographer within two weeks of submission of the photographs.
III. Provision of photographic material (analog and digital)
1. These Standard Terms and Conditions shall apply to all photographic material submit- ted to the customer regardless of its degree of completion or technical form. They shall expressly also apply to photographic material transmitted electronically or digitally.
2. The customer acknowledges that the photographic material provided by the photographer constitutes copyright material as defined by law.
3. Any suggestions submitted by the customer concerning modifications or adjustments shall be deemed to constitute individual services which shall be subject to separate remuneration.
4. The photographic material provided shall remain the photographer’s property not- withstanding the fact that consideration may have been received for it.
5. The customer shall treat the photographic material carefully and may only make it available to third parties for internal business purposes, i.e. for viewing, selection purposes and technical editing.
6. Any complaints concerning the content of the delivery or the content, quality or state of the photographic material shall be lodged within 48 hours of receipt. Failing this, the photographic material shall be deemed to have been received in proper condition, in conformance with the contract and as described.
IV. Utilisation rights
1. The customer shall fundamentally only receive simple rights for one-time utilisation. Subject to any other agreements, the right of publication on the Internet or inclusion in digital databases shall be limited to the duration of the publication period of the corresponding or a comparable printed item.
2. Exclusive utilisation rights, exclusive rights for certain geographic territories or periods of time shall be subject to separate agreement as well as a surcharge of at least 100% on top of the basic fee in question.
3. Upon the photographic material being delivered, only the utilisation rights shall be granted for one-time use of the photographic material for the purpose specified by the customer and in the publication, medium or data vehicle which has been stated by the customer or can be reasonably assumed in the light of the circumstances sur- rounding the placing of the order. In the case of any doubt, the purpose for which the photographic material has been supplied as evidenced by the delivery note or the recipient address shall be decisive.
4. Any use, exploitation, dissemination, copying or publication going beyond the scope provided for in Section 3 above shall be subject to separate remuneration and require the photographer’s prior written approval. This shall particularly apply to secondary exploitation or publication including but not limited to anthologies, pro- duct-related brochures, advertising or, in the case of any other types of reprinting, any editing of or modifications or changes to the photographic material, - digitalisation, storage or duplication of the photographic material on data media of any type (e.g. magnetic, optic, magneto-optic or electronic media such as CD-ROM, DVD, hard disks, RAM, microfilms etc.) other than for the technical editing and management of the photographic material pursuant to III 5. herein, any reproduction or utilisation of the photographic data on digital data media, inclusion or display of the photographic data on the Internet or in on-line databases or other electronic archives (including the customer’s internal electronic archives), the transmission of digitalised photographic material by data transmission lines or on data media for reproduction on screens or for the production of hardcopies.
5. Any modifications to the photographic material using photo composing, mounting or electronic means to produce a new copyright work shall require the photographer’s prior written approval and shall be designated as such by [M].In addition, the photographic material may not be copied in drawing form, recreated photographically or used in any other manner as a motive.
6. The customer may not transfer the rights of utilisation or any part thereof granted to it to any third parties unless these are members of its group or subsidiaries. All use, reproduction and transfer of the photographic material shall be subject to the condition that the copyright information stipulated by the photographer be included in such a way that it can be clearly allocated to the picture in question.
7. The grant of the rights of utilisation shall be subject to the condition precedent of full settlement of all of the photographer’s claims for payment under the applicable contractual relationship. If otherwise not specified, usage rights are granted for 1 year from the day of the photo shoot and for one online media only OR one printed media only in the UK or in any single country. No multiple countries or usage ways are granted automatically.
V. Liability
1. The photographer shall not be held liable for the breach of any rights held by per- sons or objects depicted in the photographic material unless a duly signed release is enclosed. The customer shall be responsible for acquiring the rights of utilisation over and above the copyright to the photograph in question and for obtaining releases from collections, museums etc., e.g. for images showing works of applied or plastic arts. The customer shall be responsible for the legend as well as the context in which the photograph is used.
2. The customer shall assume responsibility for the due and proper utilisation of the photographic material as of the date of delivery.
3. The photographer can not be held liable for any accidents, fines or personal injuries during the photo shoot.
4. The photographer is under no circumstances liable for any fees or payment requests from the crew.
5. The Client shall fully indemnify the Photographer against any claims, costs, or expenses arising out of any illegal or defamatory Photographic Works produced for the Client and any infringement of any intellectual property right of any person. The Client is responsible for obtaining any authorisation, clearance, licence or other form of approval necessary for the lawful use of any third party intellectual property works.
VI. Fees
1. The agreed fee shall apply. The fee shall be subject to value added tax at the applicable rate.
2. The fee shall be deemed to constitute good consideration for the one-time utilisation of the photographic material for the agreed purpose in accordance with Section IV.3 herein.
3. The fee shall not include any costs and expenses arising in connection with the order (e.g. cost of materials, laboratory, models, props, travel, other necessary expenses), which shall be borne by the customer.
4. The fee shall be payable upon delivery of the photographs or within the time written on the invoice from the photographer. If the results of the production are supplied in parts, the corresponding part payment shall fall due upon receipt of the corresponding delivery. In the case of commission productions, the photographer may request advance payments matching the percentage of completion of the production.
5. The costumer accepts that late payments are subject to 10% administrative fee charged on the top of the gross amount of the invoice.
6. The fee provided for in Section VI. 1 herein shall be payable in full notwithstanding the fact that the photographic material ordered and supplied is not published. If the photographic material is to be used as a basis for layout and presentation purposes, a fee of at least 75 percent shall be payable in the absence of any other agreement to the contrary.
7. Only counter-receivables which are not disputed or have been upheld in a court of law may be netted or shall be subject to a right of retention. Moreover, counter- receivables which are disputed but on which a decision is soon to be made may also be netted.
8. Should the Client request the Photographer to arrange for models with model agencies, in addition to being liable to pay for all fees related to the engagement of models, the Client shall pay to the Photographer 10% of the total invoiced sum payable to the model agencies as arrangement fee.
In respect of the Photographic Works, the Photographer shall not be responsible for any liability (including monetary liabilities) in relation to or arising from the use of Photographic Works outside the country of usage, media and time period as agreed by the models or model agencies. The Photographer and model agencies hereby reserve all rights thereunder.
9. Cancellation of the photo shoot: In the event of a cancellation or postponement of a shoot by the Client (or Agency) at any time after the booking confirmation/award, Client (or Agency) shall pay all expenses incurred by the Photographer up to the time of cancellation, plus a fee equal to 50% of all Creative and Licensing fees quoted above. If a shoot is cancelled within one week of the confirmed shoot day, Client or Agency shall pay up to 100% of Creative fees, Licensing fees and Expenses quoted above.
If a shoot is postponed due to weather, Client will be responsible for all Expenses incurred on each Weather Day, plus a Photographer's fee to be agreed upon.
Booking confirmation is done either - but not only - by signing the photographer’s invoice or in any email or message sent by the client.
VII. Return of photographic material
1. Analog photographic material shall be returned in the form in which it was supplied immediately after it has been published or utilised for the agreed purpose provided that this is no later than three months after the date of delivery; two sample copies of the publication in which the photographic material appears shall be enclosed. An extension to this three-month period shall require the photographer’s written approval.
2. Digital data shall be deleted and/or the data media destroyed upon completion of utilisation. The photographer shall be under no duty to ensure the continued existence and/or possibility of renewed delivery of the data.
3. If at the customer’s request or with its approval the photographer supplies photographic material solely for the purpose of determining whether it is suitable for use or publication, the customer shall return analog photographic material no later than one month of receipt in the absence of any other period stated on the consignment note. Digital data shall be deleted and/or the data media destroyed or returned. This period may only be extended with the photographer’s written consent.
4. The customer shall return the photographic material at its own cost in standard packaging. The customer shall bear the risk of loss or damage during transportation until the photographic material reaches the photographer.
VIII. Penalties, damages
1. In the event of any unauthorised utilisation, use, reproduction or disclosure of the photographic material (i.e. without the photographer’s consent), the customer shall be liable to pay a penalty equaling five times the applicable fee for each individual instance, it being understood that this shall not operate to restrict any other remedies available to the photographer.
2. If the copyright notice is missing, incomplete, in the wrong position or not possible of being clearly allocated to the picture in question, a surcharge of 100% of the agreed or customary fee shall be payable.
IX. General provisions
1. The contractual relationship anticipated by these Standard Terms and Conditions shall be subject to UK law including in the case of deliveries to foreign destinations. 2. Any additions or modifications to these Standard Terms and Conditions shall be in writing only.
3. If any of the provisions contained herein are void, this shall not prejudice the validity of the remaining provisions. In such a case, the Parties undertake to replace the void provision with a valid one coming as commercially and economically close as possible to what they intended with the void provision.
4. The place of fulfilment and the legal venue shall be the photographer’s domicile in cases in which the customer is a full merchant as defined by UK commercial law.