Progression (Progressive Imaging) Ltd Photography Terms and Conditions

1  DEFINITIONS AND INTERPRETATION
In these terms and conditions (‘these Terms” ‘The photographer” means the person named in the Agreement who is to provide services as a photographer;  ‘the Client’ means the person named in the Agreement engaging the services of the Photographer; ‘the Agency’ means Progression (progressive-imaging ltd).  For the purpose of this Agreement ‘the Agency’ and ‘the Client’ shall where the context so admits, include their respective assignees, sub-licensees and successors in title.  In cases when the Client is an agent (such as an advertising agency) of the intended user of the photography, such as an advertiser or brand, references to the Client shall include a reference to the Client or the intended user of the photographs (or other services) such an advertiser, reference to the Client shall include  a reference to the Client or the intended user as the context requires; ‘Photographs” means  all photographic material furnished by the Photographer, whether transparencies, negatives, prints or any type of physical or electronic file/material.

This Agreement constitutes the whole and only agreement between the parties and supersedes and extinguishes any prior drafts, previous agreements, undertakings, representations, warranties and arrangements of any nature whatsoever, whether or not in writing between the parties, in connection with the subject matter hereof.  This Agreement contains the only terms that apply to the engagement of the Photographer or the provision of other services by the Agency.  Unless otherwise agreed in writing, these Terms shall apply to the Agreement to the exclusion of any other terms and conditions including (for the avoidance of doubt) any terms and conditions contained in any document origination fron the Client.  Acceptance of the services of the Photographer or the Agency offered under the Agreement shall be deemed conclusive evidence of the Client’s acceptance of these Terms.

2  COPYRIGHT
The entire copyright of the Photograph is retained by the Photographer throughout the world at all times 

3  OWNERSHIP OF MATERIALS
Title to all Photographs remains the property of the Photographer.  When the licence to use the Photograph has expired, the Photographs must be returned to the Photographer within 30 days

4  USE
The licence to use the Photographs will be set out in separate correspondence between the Client and the Agency and it is restricted to the use by the Client for the purpose expressly set out in writing.  No other licence to use the Photographs is granted.  Any licence to use contained in the Agreement comes into effect only from the date of payment of the relevant invoice(s).  No use may be made of the Photographs before payment in full of the relevant invoice (s) without the Photographer’s or the Agency’s express written permission.  Any such permission, if given, will automatically be revoked without further notice if full payment is not made by the due date or if the Client becomes insolvent or enters into any type of insolvency procedure.  Where use of the Photographs is restricted in the Agreement, permission to use the Photographs for other purposes maybe granted upon payment of a further  ee, to be mutually agreed.

To note:  An agreement must be reached with the Photographer or the Agency before the Photographs may be used for other purposes.

5  EXCLUSIVITY
The Client will be authorised to publish the Photographs to the exclusion of all other persons.  However, the Photographer and the Agency retain the right in all cases to use the Photographs in any manner at any time and in any part of the world for the purpose of advertising or otherwise promoting the Photographer’s and the Agency’s work or services.  After the exclusivity period indicated in the licence to use the Photography has expired, the Photographer shall be entitled to use the Photographs for any purpose.

6  CO-OPERATION

The client will  give the Agency and the Photographer clear briefings and instructions and ensure that they are accurate

7  CLIENT CONFIDENTIALITY
The Agency and or the Photographer will keep confidential and will not disclose to any third parties or make us of material or information communicated to it in confidence for the purpose of the Agreement, save as may be reasonably necessary to allow the performance of the services and obligations within the Agreement

8  CLEARANCES
The Agency and or the Photographer will only be obliged to obtain clearances in respect of third party copyright works, trademarks, designs or any other intellectual property or any other matters if this has been expressly agreed in writing in advance.  In all other cases, the Client shall be responsible for obtaining such clearances and will indemnify the Photographer and the Agency against all expenses, damages, claims and any legal costs arising out of any failure by the Client to obtain such clearances

9  PAYMENT
Payment by the Client is due within 30 days of the issue of the relevant invoice(s) by the Agency unless other arrangements such as payments in advance have been agreed.  All payments must be made without any deduction or set-off whether equitable or otherwise.  All payments must be made to the Agency.  If any payment is not made when due, without limiting the Agency’s or the Photographer’s other rights, the Agency and/or the Photographer may suspend performance of any services.  All sums payable are exclusive of any added value tax.  Where a surcharge is levied by a supplier of the Agency or the Photographer against the Agency or the Photographer due to late payment, which results from late payment by the Client, the Client shall immediately reimburse to the Agency the amount of such surcharge, together with any accrued interest charges by the supplier of the Agency or Photographer in respect of the overdue amount.

10  EXPENSES
Where extra expenses or time are incurred by the Photographer or the Agency as a result of alterations to the original brief by the Client, or otherwise at the Client’s request, the Client shall be liable to pay such extra expenses or fees at the Photographer’s and or the Agency’s normal rate in addition to expenses that may have been agreed or estimated.

11 REJECTION
Unless a rejection fee has been agreed in advance and in writing, the Client has no right to reject on the basis of style or composition

12 CANCELLATION & POSTPONEMENT
A booking is considered firm from the date of confirmation and accordingly, the Agency and the Photographer will, at their discretion, charge a fee for cancellation or postponement.  In addition, the Client will reimburse the Agency for any charges or expenses incurred by the Agency or the Photographer for which either of them are committed as well as any charges imposed on the Agency or Photographer by third parties arising from the cancellation or amendment

13 RIGHT TO CREDIT
If the parties have agreed a ‘Right to a Credit’ the Photographer’s name will be printed on or in reasonable proximity to all published reproductions of the Photograph (s).  The Photographer also asserts his/her statutory right to be identified in the circumstances set out in sections 77 to 79 of the Copyright, Design and Patents Act 1988 or any amendments or re-enactment thereof

14 SUPPLY OF OTHER SERVICES
The Client and the Agency may agree in writing that the Agency is to provide other services such as but not limited to production facilities, art direction or set building.  These terms will apply to such engagements.

15 THIRD PARTIES
The licence to use Photographs only applies to the Client and the product as stated in the Agreement.  The licence to use may not be assigned or sun-licensed without the prior written consent of the Agency and or Photographer without the prior consent in writing from the Agency and or the Photographer.  A person who is not party to this Agreement (other than the Photographer) has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term on this Agreement or otherwise but this does not affect any right or remedy of a third party which exists or is available apart from the Act.  The Photographer and or the Agency may enforce the terms of the Agreement

16 ELECTRONIC USE
Save for the purpose of reproduction for the licence use (s), the Photographs may not be stores in any form of electronic medium without written permission of the Photographer.  Manipulation of the image or use of only a portion of the image may only take place with the permission of the Photographer

17 LIMITATION AND EXCLUSION
17.1 Nothing in this Agreement shall exclude or any way limit the Agency’s  or the Photographer’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law,  Subject to the following:

(i) The Agency’s and the Photographer’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed the total charges payable to the Agency hereunder the preceding 6 months;

And

(ii) The Agency will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts, loss of opportunity or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known

17.2 This Agreement states the full extent of the Agency’s and the Photographer’s obligations and liabilities to the Client in respect of the photography and the performance of any services.  The parties agree that any condition, warranty representation or other term concerning these matters which might otherwise be implied into or incorporated in this Agreement, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law

17.3The parties acknowledge and agree that they have not been induced to enter into this Agreement by any representation, warranty or other assurance not expressly incorporated into it.

18  TERMINATION
18.1 Either party may terminate this Agreement forthwith by notice in writing to the other if the other party:
(a) is in material breach of any of the terms of this Agreement and, in case of a breach capable of remedy, fails to remedy such breach within 14 days of receipt of written notice giving full particulars of the breach and on the steps required to remedy it; or
(b) (being a  company) passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction)or a court makes an order of that effect; or
(c) (being a partnership or other unincorporated association) is dissolved or (being a natural person) dies; or
(d) becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or
(e) has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets; or
(f) ceases, or threatens to cease, to carry on business
18.2 Termination shall not affect the accrued rights of the parties

19  WAIVER
The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect that party’s right later to enforce or exercise it.

20  FORCE MAJEURE
20.1Neither party shall be liable for any failure to perform or delay in performance ofany    obligations under this Agreement caused by circumstances  beyond the reasonable control of a party to this Agreement  (a ‘Force Majeure Event’)
20,2 The party claiming the Force Majeure Event shall promptly notify the other party in          writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to overcome the delay or stoppage
20.3 if the party claiming the Force Majeure Event has complied with clause 20.2, its performance under this Agreement shall be suspended for the period of the Force Majeure Event continues and the party will have an extension of time for performance equal to such period
20.4 If the Force Majeure Event continues for more than 60 consecutive days, either party may terminate this Agreement with immediate effect on giving written notice to the other party and neither shall be liable to the other for such a termination

21  APPLICABLE LAW
This agreement shall be governed by the Las of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts

22 ASSIGNMENT
Neither party may assign sub-contract, sub-license or otherwise dispose of all or any of its rights or transfer all or any of its obligations under this Agreement without the prior written consent of the other party

23 NOTICES
All communications relating to this Agreement shall be in writing and delivered by hand or sent by post or email to the party concerned at the address set out in correspondence (or such other address as may be notified from time to time in accordance with this condition by the relevant party to the other party) Any such communication shall take effect upon delivery