These Terms and Conditions shall apply to the provision of Services by Ben Battell Photography to their clients. The relevant Ben Battell Photography trading entity, and client contracting party, are as set out in the applicable Quote.
SECTION 1 – DEFINITIONS AND INTERPRETATION
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings (and any defined terms used in these Terms and Conditions that are not defined below shall have the meaning given to them in the Quote):
1.1 “Amendments” means any additional changes that Ben Battell Photography have agreed to make to a Client’s Delivery Materials on top of those already agreed upon in the original Quote, pursuant to the procedure set out in Clause 4.1
1.2 “Client” means any individual, firm or corporate body (which expression shall, where the context so admits, include its successors and assigns) who purchases services from Ben Battell Photography Co and listed in the Quote for a Project
1.3 “Client Materials” means any material provided by Client for use in the Delivery Materials including without limitation stills, moving image, logos, marketing material, text, graphics, audio
1.4 “Commencement Date” means the date on which the Client agrees to hire the services of Ben Battell Photography Co as stated in the Quote or as otherwise agreed by the parties in writing
1.5 “Delivery Date” means the agreed delivery date for the Delivery Materials, as agreed in the Quote or as otherwise agreed by the parties in writing
1.6 “Delivery Materials” means those deliverables, as may include, without limitation, footage, photographic stills, documents and other delivery materials to be delivered by Ben Battell Photography to Client as agreed in the Quote or later mutually agreed by the parties in writing
1.7 “Fee” means the fixed cost price for Ben Battell Photography delivering the Services and Delivery Materials
1.8 “In writing” means any written form of communication, including by email
1.9 “Project” means the Client’s applicable project for which the Services and Delivery Materials are being delivered, as shall be detailed in the Quote
1.10 “Services” means the services to be provided by Ben Battell Photography to the Client as set out in the applicable Quote(s)
1.11 “Quote” means the quote for the Services to be undertaken for Client detailing the budget and timeline for the Services
1.12 “Usage Rights” means any online or digital use of the finished Delivery Materials in the context of the Project only (including on Client websites and social media sites and third party websites and social media sites) for use worldwide, in perpetuity
SECTION 2 – THE SERVICES
2.1 With effect from the Commencement Date Ben Battell Photography shall provide the Services to the Client as agreed in the Quote subject to receipt of the Fee detailed in the Quote.
2.2 Ben Battell Photography shall use all reasonable endeavors to complete its obligations within the agreed timeline. To facilitate this the Client must provide all the Client Materials and resources needed by Ben Battell Photography to complete the work according to the deadlines of the Project.
2.3 Should the Project scope change and these changes be agreed in writing between Ben Battell Photography and the Client, a new Project outline and quotation will be submitted in accordance with Section 4 below.
2.4 After the Quote has been agreed, Ben Battell Photography will begin chargeable work on the Project. Cancellation of a Project after the Commencement Date may incur a fee – please see section 4 below for details.
SECTION 3 – PAYMENT
3.1 The Fee is a fixed cost and in the event that the Delivery Materials are produced for less than the Fee, Supplier shall be entitled to retain such underspend, if any.
3.2 All payments must be made within 30 days of the date of the relevant invoice in pounds sterling (GBP) by bank transfer, unless otherwise stated in a Quote. Payments in other currencies must be agreed in writing prior to the Commencement Date.
3.2 Staged payments payable by the Client are detailed in the Quote.
3.3 Ben Battell Photography reserves the right to withdraw or suspend any services offered if payment is not received in line with this Clause 3. Ben Battell Photography reserves the right to charge a late-payment interest fee at 4% above the Bank of England base rate from time to time for the period of delay from the due date up until the date payment is received by Ben Battell Photography
3.4 In the event of the Project being delayed due to actions of the Client such that final delivery of the Delivery Materials would exceed the Delivery Date by 2 weeks or more, then Ben Battell Photography reserves the right to terminate the Agreement and the Client will become liable for full payment of the project value at the Delivery Date.
3.5 In the event of late payment by the Client, Ben Battell Photography will suspend all services until such time as payment is received, and shall not be liable for any inconvenience or loss of business or other loss damage or expense that this may cause the Client.
3.6 Expenses may be requested before a Project commences, particularly with international projects, and shall be mutually agreed in writing in a Quote or otherwise by email. Expenses are a guideline, and can vary depending on the job. Ben Battell Photography shall be entitled to charge up to an additional £250 for expenses on a Project without being pre-authorised if Ben Battell Photography reasonably considers it could jeopardize the Project without this additional expenditure.
SECTION 4 – VARIATION, AMENDMENTS AND CANCELLATION
4.1 If the Client wishes to vary any details of the Project (whether the timeline, editorial brief, budget or otherwise), they must notify Ben Battell Photography in writing as soon as possible and Ben Battell Photography Co shall provide a quote for such Amendments. If the additional quote is accepted by Client in writing, Ben Battell Photography shall make the required Amendments in the timeframe agreed by the parties in the new Quote or as otherwise agreed in writing. The additional agreed costs shall be invoiced and paid by Client within 14 days of delivery of the relevant Amendments or, at Ben Battell Photography’s discretion, added to the final invoice which shall be paid by Client in accordance with the payment terms for such invoice.
4.2 If the Client wishes to cancel/rearrange a Project, the following cancellation policy will be enforced:
Notice is calculated based on the date of the first engagement day. Build days, travel days, recce days, pre-light days, shoot days, strike days and edit days, are all considered as an engagement day. All seven days of the week count for the notice period. For the purpose of calculating the number of days’ notice given, the day on which notice is given is included, but the engagement day is not. For the purpose of clarity a day is calculated on the standard 24hour clock.
> 8 or more days prior to the first engagement day: no cancellation fee applies
> 7–4 days prior to the first engagement day: 50% of the Fee
> 3–2 days prior to the first engagement day: 75% of the Fee
> On the day prior to or on the day of the engagement: 100% of the Fee
In the event of a cancellation, regardless of the notice period given, any costs incurred by Ben Battell Photography relating to the Project will be chargeable to the Client.
4.3 If, due to circumstances beyond Ben Battell Photography’s control as set out in Section 7, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Client immediately and Section 7 shall apply.
4.4 Licensed audio included in the budget that is used on edits but is then discarded by Client will still require full payment.
4.5 Unless otherwise specified in a Quote, all music audio rights need to be secured by the Client, and Ben Battell Photography takes no responsibility for arranging licensing.
4.6 The Quote(s) and Terms and Conditions contain the entire agreement between the parties relating to the Project and the parties agree that they have not relied on any statement, promise, representation or warranty which is not expressly set out in the Agreement. Any amendments to the Agreement must be made in writing, save that Ben Battell Photography reserves the right to update these Terms and Conditions from time to time as it sees fit.
SECTION 5 – TERMINATION
A party may terminate the Agreement immediately if:
5.1 the other party is in breach of any of their obligations in the Agreement and, if capable of remedy, fails to remedy the same within 7 days of receipt of notice to do so;
5.2 the other party has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with his creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of his undertakings or assets;
5.3 the other party has become bankrupt or shall be deemed unable to pay his debts by virtue of Section 123 of the Insolvency Act 1986;
5.4 the other party commits any act or omission calculated or very likely to bring the terminating party into disrepute or any act of dishonesty whether relating to this Agreement or otherwise.
5.5 In the event of termination of the Agreement for any reason, Ben Battell Photography shall retain any sums already paid to it by the Client and shall be due any further part of the Fee for all expenditure in line with the budget incurred or contractually committed by Ben Battell Photography for Services supplied up to the date of termination.
SECTION 6- INTELLECTUAL PROPERTY
6.1 Ben Battell Photography will not be held liable for any civil or criminal liability resulting from the unauthorised use by persons outside of Ben Battell Photography of the Delivery Materials or any Client Materials.
6.2 Ben Battell Photography gives and hereby assigns to the Client all copyright and rights in and to the final edited Delivery Materials upon completion and Client shall be permitted to exploit the same in accordance with the Usage Rights. Any other required usage of the Delivery Materials must be agreed in writing with Ben Battell Photography in advance on terms to be agreed in good faith. Ben Battell Photography is permitted to use the Delivery Materials and any rushes and files for any corporate, promotional and marketing use (including without limitation on its websites and social media channels and pages) (and subject to clause 6.4, Client shall ensure all Third Party Materials are fully cleared and licensed for such usage).
6.3 The assignment contained in Section 6.2 excludes any stock footage or any other images, graphics, music or materials obtained from a third party and any individual contributor appearances or location clearances (“Third Party Materials”) which are used in any way in the production of the Delivery Materials. Unless otherwise agreed in the Quote or otherwise agreed by the parties in writing, Client shall obtain all licences and consents from all third party rightsholders for use of any Third Party Materials to enable Client to use and enjoy the Delivery Materials for the Usage Rights.
6.4 The assignment contained in Section 6.2 excludes Ben Battell Photography’s rushes on the Project and all working project files (which shall include without limitation technology (e.g. plug-ins), software and algorithms and the methodology) which shall only be made available to the Client with Ben Battell Photography’s prior written consent, which may be withheld at Ben Battell Photography’s discretion, and, if given, may be subject to additional charges. Ben Battell Photography agrees not to use any rushes from the Project in any third party project without the prior written consent of Client.
6.5 Ben Battell Photography will add its own accreditation to any work produced on any format, which may be more specifically set out in a Quote, unless otherwise agreed by the parties in writing.
6.6 Client Materials supplied to Ben Battell Photography and used in the Delivery Materials shall be cleared for use by Client for Client’s intended usage and Client warrants that it is the absolute owner or authorized licensee of the rights in the same, that such rights are fully cleared for all intended use of the Delivery Materials under the Agreement and that the use of such Client Materials by Client and Ben Battell Photography as permitted hereunder shall not breach any third party rights or be obscene, defamatory or offensive.
SECTION 7- FORCE MAJEURE
Neither the Client nor Ben Battell Photography shall be liable for any failure or delay in performing their obligations under the Agreement where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question. Where any such event lasts for 7 days or more, either party shall be entitled to terminate the Agreement on written notice.
Section 8 – Additional Content
Should Client wish to commission or produce any further follow up or spin-off content based on the Project (“Additional Content”), then it is agreed that Ben Battell Photography shall have the on-going exclusive first option to produce such Additional Content.