Terms of Business – Photograph Licence

Tony Hardley Photography (previously known as Dennis Hardley Photography) of Modachaidh, Ceum Dhun Righ, Benderloch, Argyll, PA37 1ST (“the Photographer”) and You,The Client

(1) The Photographer owns the intellectual property rights and title in the Photograph(s)

(2) The Client wishes to use the Photograph(s)

(3) The Photographer wishes to grant a licence to the Client to use the Photograph(s) in accordance with the terms and conditions of this Agreement.

Copyright and Title

All copyright in the Photograph(s) shall be retained by the Photographer at all times throughout the world.
Title to all Photograph(s) remains with the Photographer at all times.

Use of Photograph(s)

The License to use the Photograph(s) shall take effect from the Effective Date.
The Licence applies only to the Client for the Stated Purposes. The Client may not assign the benefit of the Licence to any third party without the Photographer’s express written permission.
Permission to use the Photograph(s) for purposes other than the Stated Purposes shall normally be granted upon the payment of an additional fee, such fee to be mutually agreed upon by the Parties and paid in full prior to the alternative use of the Photograph(s).
Unless otherwise agreed upon by the Parties, any alternative use of the Photograph(s) under sub-Clause 3.3 shall be subject to a new licence agreement and not to this Agreement except insofar as the terms of this Clause 3 apply.

Exclusivity / Non-Exclusivity



The Licence granted under this Agreement shall be non-exclusive and the Photographer shall remain entitled to use the Photograph(s) for any purposes and to licence the Photograph(s) to third parties.

Fee and Payment

The Fee payable for the use of the Photograph(s) shall be as agreed.
The Photographer shall invoice the Client for the Fee on or before the Effective Date.
The Client shall pay the Fee within thirty days of receipt of the invoice for the same.
If the invoice is not paid in full in accordance with sub-Clause 5.3, the Photographer reserves the right to charge interest at the rate of 8% per annum on any sums outstanding beyond the payment date shown in the relevant invoice and to terminate this Agreement in accordance with, and subject to, the provisions of Clause 10 (including the period within which the Client may remedy a breach as set out in sub-Clause 10.1).

Moral Rights / Right to Credit

The Photographer hereby asserts his right to be identified as the author of an artistic work (the Photograph(s)) in accordance with the provisions of Chapter IV of the Copyright, Designs and Patents Act 1988.

Confidentiality

The Parties shall keep confidential and will not disclose to any third party any information communicated to them in confidence by the other Party. Such information includes, but is not limited to, information pertaining to the Parties’ respective businesses and the Stated Purposes.
The obligations of confidence in sub-Clause 7.1 shall not apply to the extent that disclosure is required in order for the Parties to fulfil their obligations under this Agreement.

Warranties

The Photographer hereby warrants and represents that:
he has the right to enter into this Agreement; and
he has obtained any and all necessary clearances and permissions required to use the Photograph(s) in the manner set out in this Agreement.
The Client hereby warrants and represents that:
it has the right to enter into this Agreement;
it shall pay the Fees in accordance with Clause 5; and
it shall not exceed the rights granted by this Agreement.

Indemnity

The Photographer shall indemnify and hold harmless the Client against any claim, loss, damage, proceedings, settlement, costs or expenses howsoever arising, directly or indirectly, as a result of any breach or non-performance by the Photographer of any of its obligations, undertakings or warranties as set out in this Agreement.
The Client shall indemnify and hold harmless the Photographer against any claim, loss, damage, proceedings, settlement, costs or expenses howsoever arising, directly or indirectly, as a result of any breach or non-performance by the Client of any of its obligations, undertakings or warranties as set out in this Agreement.

Termination

The Photographer shall have the right to terminate this Agreement immediately by written notice if the Client commits a material breach of this Agreement, unless such breach is capable of remedy in which case the right to terminate immediately will be exercisable if the Client fails to remedy the breach within 28 days after a written notice to do so.
In the event of termination under this Clause 10 the Client shall:
immediately cease its use of the Photograph(s);
return to the Photographer any materials supplied under this Agreement; and
delete all electronic copies and destroy any physical copies of the Photograph(s).

Non-Assignment of Agreement

Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.

Notices

All notices under this Agreement shall be in writing and be deemed duly given if signed by the Party giving the notice or by a duly authorised officer thereof, as appropriate.
Notices shall be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
on the tenth business day following mailing, if mailed by airmail, postage prepaid.
All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

Force Majeure

Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations 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.

No Waiver

The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

Severance

The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.

Law and Jurisdiction

This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of Scotland.
Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of Scotland.

Updated 28 Nov 2018 SJE