Dawn Weller - TERMS & CONDITIONS OF BUSINESS
1. APPLICATION of terms
1.1 These terms and conditions will:
1.1.1 apply to all Jobs undertaken by Dawn Weller for photographers and/or photographer’s agents; and
1.1.2 subsume any inconsistent terms or conditions contained, or referred to, in confirmation of the Job, acceptance of the Estimate for the Job, or specification or other document supplied by the photographer or photographer’s agents, or implied by law, trade custom, practice or course of dealing
“Dawn Weller” means Dawn Weller, in person, or any appointed person employed by Dawn Weller for the specific purposes of conducting each Job, as confirmed by Dawn Weller, verbally or in writing and on the Estimate and invoice(s) for a Job.
“Job” means a commission by Photographer or Photographer’s Agent for the provision of set design and/or prop styling services at a shoot and prior to the shoot for preparatory purposes for that shoot.
“Commissioner” means Photographer or Photographer’s Agent, commissioning Dawn Weller for the Job.
“Client” means the client commissioning the Commissioner for the photoshoot.
“Day” means standard working day.
“Booking Confirmation Form” means the Booking Confirmation Form sent on receipt of the Job enquiry.
“Prop” means any specific prop that is purchased or hired by Dawn Weller for the specific purpose of the Job. It does not mean any prop that belongs to Dawn Weller prior to the photoshoot.
“Product” means the published image from the Job.
“Estimate” means any email or other documents, electronic or otherwise created by Dawn Weller Company setting out the Fee and expenses for any Job.
“Fee” means Dawn Weller Company’s fees as set out in the Estimate.
“Shoot Duration” means the number of confirmed days of a shoot whether undertaken consecutively or in separate parts and includes all shoot, travel, preparation, pre-light or test days.
3.1 Estimates provided by Dawn Weller at Photographer’s or Photographer’s Agent’s request are based upon the information provided by Photographer or Photographer’s Agent in advance of preparing the Estimate.
3.2. Changes to the requirements for a Job before or during a shoot may increase the Fee and expenses.
3.3 Estimates shall specify the estimated Prop list, set construction and design Fee, estimated assistant Fee, shoot attendance and preparatory day Fees and estimated expenses.
3.4 Should there be a specific requirement for returns of Props to be made the Commissioner shall specifically ask for this and this will be included in the Estimate. Returns will not be included in prep and shoot Day Fees unless specifically requested and agreed and Dawn Weller shall charge for any additional days spent on returns at a minimum of one day’s preparatory rate, as detailed on the Estimate and Invoice(s).
3.5 Commissioner is responsible for checking the Estimate to ensure that it provides for all required usage.
3.6 Confirmation is required via a completed Booking Confirmation Form by Commissioner and this shall be deemed to be acceptance of the Estimate and confirmation of the Job. No work will commence on the Job until the completed Booking Confirmation Form is returned. Should the Booking Confirmation Form be returned without enough time to complete the required preparatory days, the shoot will be deemed cancelled and Fees and Expenses shall become due in accordance with 5. below.
4. CONDUCT OF THE SHOOT
4.1 The shoot will be arranged on date(s) mutually agreed between the parties.
4.2 During the shoot Dawn Weller will take account of Commissioner’s or Client’s reasonable instructions in respect of the shoot brief.
5. CANCELLATION OF SHOOT
5.1 If a confirmed shoot is cancelled or postponed for reasons outside the control of Dawn Weller (including unsuitable weather / light), Dawn Weller reserves the right to charge a cancellation fee at the following rates together with expenses incurred:
On Shoot Duration of two days or less:
5.1.1 cancellation on 2 days notice - 100% of Fee + all expenses; or
5.1.2 on 3 to 6 days notice - 75% of Fee + all expenses; or
5.1.3 on 7 days notice and over - 50% of Fee + all expenses.
On Shoot Duration in excess of 2 days and on notice equivalent to:
5.1.4 the Shoot Duration or less -100% of Fee + all expenses
5.1.5 twice the Shoot Duration - 75% of Fee + all expenses
5.1.6 in excess of twice the Shoot Duration 25% of Fee + all expenses.
6. ACCEPTANCE & DELIVERY
6.1 If the Client elects to reject the Photographic Material on any basis the Commissioner shall be liable to pay Dawn Weller 100% of the Fee + expenses in respect of the Job.
7. STORAGE OF PROPS
7.1 Following a shoot the Props used for the shoot shall be returned by Dawn Weller if hired to the hire company. Otherwise the Client must indicate which Props are to be kept by the Client on the day of the shoot and either take them there and then or arrange with Dawn Weller to collect the Props from Dawn Weller at a mutually convenient time.
7.2 If arrangement is not made for the collection of the Props as above(7.1), Dawn Weller will assume that the Props are to be disposed of as Dawn Weller sees fit.
8. USAGE OF PRODUCT
8.1 Once the product of the photoshoot is publicly released, Dawn Weller has the right to usage of the images for promotional purposes in print and digitally.
9.1 In respect of all editorial uses and otherwise as additionally stated in the Estimate Commissioner shall procure that Dawn Weller’s name is printed on or in reasonable proximity to all published reproductions of the Product.
10.1 All expenses and production costs must be paid in advance of the shoot unless otherwise agreed in writing and such invoices are due on presentation.
10.2 All full fee invoices must be paid within 30 days of the date of issue. All reduced fee invoices must be paid in advance, along with expenses and production costs. Dawn Weller reserves the right to charge an administration fee of 5% of the total invoice cost for late payment. Should payment not be received within 60 days of the date of issue of the invoice Dawn Weller will seek to recover the debt through a collection agency and any additional expenses incurred will be charged to the Commissioner.
10.3 All payments are due in pounds sterling unless expressly stated otherwise.
11.1 All expenses figures provided in advance of a shoot are estimates only and Commissioner should allow a minimum 10% contingency budget in all cases. All estimated costs are stated exclusive of VAT.
11.2 Dawn Weller will endeavour to work within the agreed cost estimate, but individual costs within the estimate may vary at his/her discretion to enable the most effective pursuance of the brief.
11.3 Copies of receipts for expenses can only be provided if requested prior to shoot confirmation. Provision of receipts will incur an accountancy charge of 1.5% of total costs and fees incurred in respect of the Job subject to a minimum charge of £250.
11.4 Where extra expenses or time are incurred by Dawn Weller as a result of alterations to the original brief by Commissioner, or otherwise at its request, Commissioner shall be liable to pay such extra expenses and additional fees at Dawn Weller’s normal rate.
12. EXTENT OF LIABILITY
12.1 Dawn Weller shall not be liable to Commissioner or Client for any loss of profit, loss of contracts, loss of business or revenues, loss of production or for any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of Dawn Weller, Dawn Weller’s servants or otherwise) which arise out of or in connection with the shoot.
12.2 Dawn Weller’s maximum aggregate liability for all losses, damages, costs, claims and expenses howsoever or whensoever arising out of or in connection with these Terms shall in any event be limited to the total amount of the agreed fees paid to Dawn Weller in relation to the relevant Job.
12.3 Notwithstanding the above, nothing in these terms excludes or limits the liability of Dawn Weller for death or personal injury caused by Dawn Weller’s negligence or that of his/her employees, agents or sub-contractors, for any fraudulent statement or act or for any matter which it would be illegal to exclude.
12.4 Dawn Weller hereby disclaim any warranties, conditions and other terms on or relating to the services hereunder or any parts thereof which might otherwise be implied whether by statute, law, custom, course of dealing or otherwise, including without limitation any warranty, condition, or other terms of merchantability, quality, fitness for purpose or non-infringement to the fullest extent permitted by law.
13.1 Dawn Weller 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 Job, save as may be reasonably necessary to enable Dawn Weller to carry out his/her obligations in relation to the Job.
13.2 It shall be the sole responsibility of Commissioner to arrange for any third party involved in the Job to enter into any confidentiality agreement.
13.3 Dawn Weller will not be liable for any breach of confidentiality by any third party.
14.1 Either party will be entitled to terminate these Terms immediately by giving written notice to the other if the other party:
14.1.1 commits a material breach of these Terms and fails to remedy that breach within 30 days after receipt of written notice requesting its remedy; or
14.1.2 is the subject of a bankruptcy order or becomes insolvent or makes any arrangement or composition with or assignment for the benefit of its creditors or if any of the other party’s assets are the subject of any form of seizure, or the other party goes into liquidation either voluntary (otherwise than for reconstruction or amalgamation) or compulsory, or a receiver or administrator is appointed over the other party’s assets.
15. EFFECTS OF TERMINATION
15.1 On termination or expiry of these Terms for whatever reasons:
15.1.1 Commissioner shall pay all sums due and owing the date of which will be automatically accelerated to the date of termination.
15.1.2 The provisions of Clauses 2, 3.3, 7, 8, 9, 10, 11, 12, and 13 shall survive expiry or termination.
15.2 Any termination and/or suspension of these Terms shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party.
16. FORCE MAJEURE
16.1 Dawn Weller shall not be liable for any failure or delay in the performance of any of such party’s obligations under these Terms caused by any circumstances beyond such party’s reasonable control.
17.1 Waiver: No delay or omission by a party in exercising any right or remedy under these Terms shall operate to impair such right or remedy or be construed as a waiver thereof. Any single or partial exercise of any such right or remedy shall not preclude any further exercise or the exercise of any other right or remedy.
17.2 Assignment/Sub-contracting: Neither party shall be entitled to assign, transfer, delegate or sub-contract the whole or any part of its rights and obligations under these Terms without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
17.3 Notices: Any notice under these Terms shall be duly given if: (a) delivered personally; or (b) sent by pre-paid post, in which case it shall be deemed to have been received 48 hours] after posting; or (c) sent by fax, in which case it shall be deemed to have been received when transmitted.
17.4 Entire Agreement and Variation: These Terms, Booking Confirmation Form and the Estimate constitute the entire agreement between the parties with respect to the subject matter.
17.5 Severability: If any part of these Terms is found by any court or other competent authority to be invalid, unlawful or unenforceable then such part shall be severed from the Agreement and the remainder shall continue to be valid and enforceable to the fullest extent permitted by law.
17.6 Relationship: Nothing in these Terms shall be construed so as to give rise to any agency, joint venture, partnership or relationship of employer and employee.
17.7 Third Party Rights: The provisions of these Terms are for the benefit of the parties and are not intended to confer upon any person except the parties any rights or remedies hereunder. No person who is not a party to these Terms shall have any right to enforce any of its terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
17.8 Law and Jurisdiction: These Terms are governed by English law, the parties hereby irrevocably submit to the non-exclusive jurisdiction of the English Courts save in respect of the enforcement of debts in which case such jurisdiction shall be non-exclusive.