TERMS AND CONDITIONS 

1.             DEFINITIONS

For the purpose of this agreement "the Agency" and "the Advertiser" shall where the context so admits include their respective assignees, sub-licensees and successors in title.  In cases where the Photographer's client is a direct client (i.e. with no agency or intermediary), all references in this agreement to both "the Agency" and "the Advertiser" shall be interpreted as references to the Photographer's client. "Photographs" means all photographic material furnished by the Photographer, whether transparencies, negatives, prints or any other type of physical or electronic material.

2.             COPYRIGHT

The entire copyright in the Photographs is retained by the Photographer at all times throughout the world.

3.             OWNERSHIP OF MATERIALS

Title to all Photographs remains the property of the Photographer. When the Licence to Use the material has expired the Photographs must be returned to the Photographer in good condition within 30 days.

4.             USE

The Licence to Use comes into effect 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 express permission. Any permission which may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Agency is put into receivership or liquidation. The Licence only applies to the advertiser and product as stated on the front of the form and its benefit shall not be assigned to any third party without the Photographer's permission. Accordingly, even where any form of 'all media' Licence is granted, the photographer's permission must be obtained before any use of the Photographs for other purposes e.g. use in relation to another product or sublicensing through a photo library. Permission to use the Photographs for purposes outside the terms of the Licence will normally be granted upon payment of a further fee, which must be mutually agreed (and paid in full) before such further use. Unless otherwise agreed in writing, all further Licences in respect of the Photographs will be subject to these terms and conditions.

5.             EXCLUSIVITY

The Agency and Advertiser will be authorised to publish the Photographs to the exclusion of all other persons including the Photographer. 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 his/her work. After the exclusivity period indicated in the Licence to Use the Photographer shall be entitled to use the Photographs for any purposes.

6.             CLIENT CONFIDENTIALITY

The photographer will keep confidential and will not disclose to any third parties or make use of material or information communicated to him/her in confidence for the purposes of the photography, save as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the commission.

7.             INDEMNITY

The Photographer agrees to indemnify the Agency and the Advertiser against all expenses, damages, claims and legal costs arising out of any failure by the Photographer to obtain any clearances for which he/she was responsible in respect of third party copyright works, trademarks, designs or other intellectual property. The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed before the shoot. In all other cases the Agency shall be responsible for obtaining such clearances and will indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.

The Client indemnifies the Photographer and David Southcott Quail Images against all or any claims of any nature or description, civil or criminal, which maybe brought or instituted against the Photographer by any third party or authority arising during the course of the assignment and related in any way thereto, or alleged to arise from or relate to the subject matter, of any photograph(s) or sensitized material taken or  processed or otherwise dealt with by the Photographer at the instance or request of the client.

8.             EXPENSES

Where extra expenses or time are incurred by the Photographer as a result of alterations to the original brief by the Agency or the Advertiser, or otherwise at their request, the Agency shall give approval to and be liable to pay such extra expenses or fees at the Photographer's normal rate to the Photographer in addition to the expenses shown overleaf as having been agreed or estimated.

9.             REJECTION

Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.

10.           CANCELLATION & POSTPONEMENT

A booking is considered firm as from the date of  confirmation and accordingly the Photographer will, at his/her discretion, charge a fee for cancellation or postponement.

11.           ELECTRONIC STORAGE

Save for the purposes of reproduction for the licensed use(s), the Photographs may not be stored in any form of electronic medium without the 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.

12.           VARIATION

These Terms and Conditions shall not be varied except by agreement in writing.

13.           OVERTIME AND DELAYS

In any circumstances not under the control of the Photographer, the photographer shall be entitled to incorporate overtime charges into the invoice, whether specified or not in the original agreement between the Photographer and Client

14.           PHOTOGRAPHER’S LIABILITY

The Photographer entire liability to the client is limited to the contractual value of the agreement accepted for the assignment by the Client. All claims for incidental or consequential damage are excluded.

15.           FORCE MAJEURE, ACTS OF GOD

Delivery estimates are made by the Photographer in good faith, but in the event of an Act of God, or circumstances beyond the reasonable control of the Photographer, the Client shall have no claim for damages consequential for otherwise against the Photographer because of late or non delivery of the material. Whilst every effort shall be made by the Photographer to carry out the terms of the contract, he/it shall not be liable for any loss or damage sustained by virtue of the non –fulfilment thereof as a result of inability to secure labour, materials or supplies, or as a result of any war. Act of God, strike, lockout, electricity blackout or the like, or through any other cause beyond the Photographer’s control.

16.           THIRD PARTY TERMS

Bookings of third party supplies, including models, are subject to such terms and conditions as these parties impose and can be made available on request

17.           ELECTRONIC STORAGE

Where the Photograph(s) are captured/delivered to the Client in digital format, after the first delivery of images, it is the Client’s responsibility to archive these images. The Client should treat the delivered files carefully ( noting that CD and DVD are unreliable media) and keep a safe copy for the duration of the licence. The Photographer is not obligated to archive any shoot material, unless by prior written agreement, Manipulation of the images or use of only a portion of the image may only take place with the permission of the Photographer.

18.           APPLICABLE BY LAW

The agreement shall be governed by the laws of  the Republic of  South Africa and subject to the exclusive jurisdiction of the South Africa courts.

19.           ENTIRE AGREEMENT

This agreement constitutes the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this agreement. Neither party shall be entitled to rely on any agreement, understanding or arrangements not expressly set forth in this agreement save for any representation made fraudulently.