Terms and Conditions
1. In the terms and conditions the following definitions shall apply:-
(a) "The Customer" means any person, firm or company who negotiates with or contracts to take on loan or licence, or to purchase, the pictures of MSH Photography.
(b) "MSH Photography" means Michael S. Hopps Photography
(c) "Picture" includes a photographic print or transparency or any other item including an electronic image (in the form of a computer file or otherwise) which may be offered by MSH Photography for the purposes of reproduction.
(d) "Reproduction" includes any form of publication or copying, of the whole or part of any Picture and whether or not altered whether by printing, photography, slide projection (whether or not to an audience) xerography, artists reference, artists illustration, layout at presentation, electronic or mechanical reproduction including on-line services, Internet or CD Rom, or storage by any other means, and "to Reproduce" shall be construed accordingly.
(e) "Reproduction Fee" is the fee agreed upon between the parties to cover Reproduction of the Pictures.
(f) "Return Date" is the date by which the Pictures must be returned.
2. The conditions apply to all orders, supplies and reproductions of Pictures from or by MSH Photography, and shall apply in place of and prevail over any terms and conditions contained or referred to in the Customer's order or correspondence or elsewhere or implied by trade practice or course of dealing. No variation of terms and conditions set out herein shall be effective unless agreed in writing by both parties.
Loan of Pictures
3. If any of the Pictures supplied shall give rise to a publication right or to any similar rights in the United Kingdom or in any other country those rights shall belong exclusively to MSH Photography. The Customer undertakes to do all such things and to procure that any third parties in whom such rights may otherwise vest do all such things and sign and execute all such documents as may reasonably be required to vest all such rights exclusively in MSH Photography.
4. Pictures are supplied to the Customer by way of loan only. No property or copyright in any pictures shall pass to the client whether on their submission or on MSH Photography's grant of reproduction rights in respect thereof.
5. MSH Photography will charge a non-refundable service fee ("Service Fee") to cover research, administration and standard postal delivery payable by the Customer on each submission and resubmission of Pictures whether or not Reproduction Rights are required or granted. Any fees charged will be based on MSH Photography's standard rates for the work involved, but will not be less than MSH Photography minimum Service Fee quoted at the date of the order.
6. MSH Photography shall deliver the Picture to the Customer according to the Customer's instructions, and unless by standard postal delivery, at the Customer's cost. All Pictures shall be deemed to have left MSH Photography's premises in good condition unless noted otherwise, or unless within 2 days of receipt MSH Photography receives notification of any discrepancy or damage.
7. Each Picture may be held by the Customer without charge until the Return Date specified ("Free Holding Period"). If no Return Date is specified or otherwise agreed in writing it shall be one month from the date of dispatch. This Free Holding Period may be extended at the discretion of MSH Photography. If the picture is not returned by the Return Date or any such extension, MSH Photography reserves the right to levy a Holding Charge of £5 per Picture per day pending its return. Payment of the Holding Charge does not entitle the Customer to retain the Picture after the Return Date.
8. Risk in and responsibility for the Pictures passes to the Customer from the time they are received until their safe return. The Customer shall immediately inform MSH Photography in writing of any known loss or misuse of, or damage to the Picture whilst in the Customer's possession or that of any third party. Any Pictures lost or damaged will be subject to a minimum compensation charge of £250 per picture. This figure has been assessed by MSH Photography as a genuine pre-estimate of loss which would be suffered if a Picture were to be lost or damaged. The Customer is urged to take out adequate insurance to cover the total value of Pictures delivered. If a Picture is not returned within 12 weeks of the Return Date, MSH Photography may in its sole discretion presume it to be lost. The Customer shall be liable to pay compensation to MSH Photography in respect of each Picture lost or damaged in addition to the Holding Charges to that date. Payment of compensation does not give rise to any rights in any Picture and or ownership in any Picture. For the avoidance of doubt, MSH Photography will retain absolute ownership of any such Picture.
9. The Customer shall return immediately to MSH Photography any damaged Picture or any lost Picture which is subsequently found. If any Picture is reported lost and subsequently found, provided that it is not damaged, the customer will be credited with the compensation paid less the Holding Charge (payable under clause 7) from the date the compensation is claimed to the date the Picture is returned, such credit being at least 20% of compensation.
10. Any Picture returned without its mount or with its caption or other mount data missing or defaced, may incur a replacement charge.
11. The Customer must return every Picture to MSH Photography by the specified Return Date by any method affording proof of delivery and insured to the relevant level of compensation cover. Adequate protection must be given to the Pictures in transit. A delivery note listing the returned Pictures must be enclosed and a letter listing the same information must be sent by separate post. Any Picture which has been supplied by electronic means via on-line services and stored on any electrical or magnetic storage device or by any other means shall, at the specified Return Date, be destroyed or deleted from any computer or control and or other device in the Customer's possession or control and such destruction and or deletion shall be certified in writing to MSH Photography by the Customer.
12. The Customer may only reproduce the Pictures: (a) with the prior consent of MSH Photography; and
(b) after payment of the appropriate Reproduction Fee.
13. Possession of the Pictures does not constitute consent to Reproduce them. The Customer must notify MSH Photography of the intended use of the Pictures. MSH Photography may at its absolute discretion, then grant consent to the Reproduction by letter or by invoicing the appropriate Reproduction Fee and such consent shall be subject to any terms expressed in the invoice.
14. Until MSH Photography has invoiced the Reproduction Fee neither party is committed to grant or to acquire any Reproduction rights in any Picture. After a Reproduction Fee has been agreed and an invoice issued there is a firm and binding contract whereby MSH Photography is committed to grant Reproduction rights and the Customer to acquire them. If after such invoicing but before payment the Customer requests cancellation of the Reproduction rights MSH Photography may in its discretion cancel subject to the Customer paying a cancellation fee of 50% of the Reproduction Fee. If payment has been made and the Customer requests cancellation of the Reproduction rights then MSH Photography may in its absolute discretion cancel subject to the Customer paying a cancellation fee of 75% of the Reproduction Fee. The balance of the Reproduction Fee will then be returned to the Customer.
(b) The Customer's right to Reproduce a Picture arises only when MSH Photography's invoice relating to the grant of such Reproduction right is fully paid. Any Reproduction before payment of the invoice constitutes an infringement of rights and a breach of this Agreement entitling MSH Photography to rescind the Agreement and rendering the Customer liable for the payment of damages.
(c) The Customer agrees to indemnify MSH Photography in respect of any claims or damages or any loss or costs arising in any manner from the Reproduction rights of any Picture supplied to the Customer by MSH Photography. This also includes the case where, if any third party reproduces any Picture loaned to the Customer, the Customer shall without prejudice, pay MSH Photography all the fees including Service Fee, Reproduction Fee and any Holding Charge which that third party would be liable to pay MSH Photography had the third party borrowed and reproduced the picture pursuant to these terms.
15. Unless otherwise agreed in writing by the parties, the Reproduction rights for the Pictures granted by MSH Photography shall:
(a) not be exclusive to the Customer except when specified on the invoice;
(b) be personal to and exercisable only be the Customer and shall not be assigned without the prior written consent of MSH Photography, nor may any Picture submitted to the Customer be loaned or transferred to third parties save for the purpose of the exercise by the Customer of such Reproduction rights; and
(c) be limited to the precise use, period of time and territory specified on MSH Photography's invoice and relate to a single publication in a single size with text (if any) in one language only, unless otherwise agreed in writing.
16. (a) Any Reproduction rights granted are by way of licence and no partial or other assignment of copyright shall be implied.
(b) The Customer shall pay all invoices within 30 days of issue save in the case of newspaper, periodical and broadcasting clients where payment shall be made no later than the end of the calendar month immediately succeeding publication or use.
(c) If payment is not made in accordance with 16(b) above, then MSH Photography may rescind this Agreement and recover damages, or charge interest on the overdue amount at 3% per month on the outstanding balance.
(d) MSH Photography has the option to terminate this Agreement by giving written notice to the Customer if:
(i) the Customer is in breach of any term of this Agreement; or
(ii) the Customer becomes insolvent; or
(iii) an administrative receiver or a receiver is appointed or a resolution is passed to wind up the Customer; or
(iv) the Customer ceases to trade.
If this Agreement is treated as terminated by MSH Photography, the Customer shall immediately return to MSH Photography all Pictures which the Customer may have in its possession or under its control. Any electronic Pictures provided to the Customer via on-line services and stored on CD-Rom or by any other means shall be destroyed or deleted from any computer or any other device in the Customer's possession or control and such destruction and or deletion shall be certified in writing to MSH Photography by the Customer.
17. MSH Photography does not warrant the accuracy of any description of Pictures and the identification of persons appearing in them and therefore the Customer:
(a) shall report any discrepancies to MSH Photography immediately on their discovery;
(b) acknowledges that MSH Photography shall not be liable to the Customer for any inaccuracies; and
(c) shall indemnify MSH Photography against any claim, loss or damage arising directly from the Customer's use of the Pictures.
18. The Customer acknowledges and accepts that because of the age and origin of some the Pictures and the images contained therein, MSH Photography gives no warranty or rights to the Customer as to:
(a) the existence or validity of model or other releases in respect of any Picture or image;
(b) the use of names, people, trade marks, registered or copyright design or works of art depicted in any Picture or image; or
(c) Moral rights (as set out in chapter IV of the Copyright Designs & Patents Act 1988) relating to the use of Pictures.
The Customer shall obtain all necessary releases, rights or consents for all uses and shall indemnify MSH Photography against any loss or claims arising from the use of the Pictures by the Customer or any third party without effective release, rights or consents or arising from any infringement of moral rights relating to use of the Pictures.
19. All Reproduction of Pictures shall be credited to MSH Photography and, if required by MSH Photography or by law, the name of the photographer.
20. If any Picture reproduced by the Customer omits the credit line specified by MSH Photography the Reproduction Fee payable by the Customer shall be subject to an increase of 50% unless otherwise agreed in writing. The right to a credit is asserted in accordance with Sections 77 and 78 Copyright, Designs & Patents Act 1988.
21. The Customer shall supply MSH Photography immediately upon Reproduction, with a verification photocopy, sample or description of the product which bears the Reproduction.
22. No addition, deletion from or alteration to or adaptation of a Picture may be made without the prior written permission of MSH Photography.
23. Failure by MSH Photography to exercise or enforce any rights under these terms and conditions shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of such rights at any time or times thereafter.
24. Any notice under these terms and conditions shall be deemed to have been duly given if delivered by hand or sent by prepaid first class post to the party concerned at its last known address or by facsimile transmission and shall be deemed to have been received by the addressee within 48 hours of posting or 24 hours if sent by facsimile transmission to the correct facsimile number of the addressee.
25. The Agreement shall be subject to and construed according to English law and the parties agree to accept the exclusive jurisdiction of the courts of England.
All Images Copyright MSH Photography