THIS IS A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN LICENSEE AND DAVID BARLOW PHOTOGRAPHY ACTING VIA ITS AUTHORISED REPRESENTATIVES PIONEER FILM AND TELEVISION PRODUCTIONS LIMITED (“PIONEER”) (WHO WILL ADMINISTER THE ISSUING OF ALL LICENCE AGREEMENTS AND PAYMENTS UNDER THE LICENCE AGREEMENTS) AND TK ONE (WHO WILL ADMINISTER THE ISSUING OF ALL MATERIAL SUPPLIED UNDER THE LICENCE AGREEMENTS) (“DBP”). THIS AGREEMENT APPLIES TO LICENCES ISSUED VIA THE WEB AND IS APPLICABLE TO ONLINE, DIGITAL AND ANALOGUE (PHYSICAL) DELIVERY OF LICENSED MATERIAL. BY ORDERING A LICENCE, THE LICENSEE IS CONFIRMING THAT IT HAS CAPACITY TO FORM A CONTRACT UNDER ITS LOCAL LAWS.
In this Agreement the following definitions shall apply:
“Costs”- means any additional charges related to the Material or technical delivery of the Material as agreed under the Licence Agreement.
“Invoice” – means the invoice provided by DBP or its representative setting out the terms agreed with DBP. The Invoice shall form part of this Licence Agreement and all references to the Licence Agreement shall include the Invoice.
“Licence Agreement” – means the written agreement between DBP and the Licensee for the provision of the Material under the terms and conditions contained therein.
“Licence Fee” – means the licence fee payable by the Licensee to DBP or its representative for the use of the Material for a per second, per minute, one-off or package deal in the Licensee Work as agreed under the Licence Agreement.
“Licensee” – means any person, firm, company, governmental or other body who or which enters into the Licence Agreement.
“Licensee Work” – means an end product or service that has been created by or on behalf of the Licensee using independent skill and effort and that incorporates a Reproduction of the Material as well as other material.
“Material” – means any still image, film or video footage, visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files, or any other product protected by copyright, trademark, patent or other intellectual property rights, which is licensed to Licensee by DBP under the terms of this Licence Agreement. Any reference in this Licence Agreement to the Material shall be to each individual item within the Material and also to the Material as a whole.
“Reproduction” and “Reproduce” – mean any form of copying or publication of the whole or a part of any Material, via any medium and by whatever means, the distortion, alteration, cropping or manipulation of the whole or any part of the Material, and the creation of any derivative work from, or that incorporates, the Material.
“Rights and Restrictions” – means the information available to the Licensee at the time of selection of the Material, either: (i) accompanying the Material on the DBP website (including all areas of the purchase process); (ii) in a written quote issued by DBP or its representative; or (iii) in the Invoice. Such restrictions may include, without limitation, the permitted scope of use, duration of licence, any territory or other use restrictions applicable to the Material selected, and the corresponding Licence Fee. The Rights and Restrictions shall form part of this Licence Agreement and all references to the Licence Agreement shall include the Rights and Restrictions.
“Standard Delivery Time” – means up to five (5) Working Days from the date of receipt of payment of the Licence Fee and any Costs.
“Working Days” – means any day (other than Saturday, Sunday or public holiday).
2. GRANT OF RIGHTS AND RESTRICTIONS
2.1 DBP grants to the Licensee a non-exclusive and non-transferable right to use and Reproduce the Material as identified in the Invoice, solely to the extent explicitly stated in this Licence Agreement.
2.2 The Material will be supplied by DBP (or its representative).
2.3 Use of the Material is strictly limited to the use, medium, period of time, print run, placement, size of Material, territory and any other restrictions specified in the Rights and Restrictions. The Licensee undertakes that it shall not use any Material for any purpose other than as expressly authorised by the License Agreement and shall not incorporate the Material into a logo, corporate ID, trademark or service mark without DBP’s prior written consent. Further, the Licensee shall not sell, transfer, sub-license, allow any third party to use the Materials otherwise than in accordance with the agreement.
2.4 The Material may be cropped or otherwise edited for technical quality, provided that the Licensee shall not use or edit the Material in any way which will or is likely to impair its meaning or bring DBP into disrepute. It shall be the sole responsibility of the Licensee to ensure that, in its use of the Material, it does not (i) defame, liber or slander any person; (ii) infringe any moral rights or rights of privacy or publicity of any person (or any similar, analogous or related personal rights); (iii) infringe any copyrights, trademarks or other rights of any person; or (iv) breach any relevant laws, rules, codes or guidelines.
2.5 If the Licensee is acting as an agent on behalf of a third party then such person shall inform DBP in writing of the full details of the third party prior to entering in to the Licence Agreement. The Licensee represents and warrants that the third party has authorised them to enter in to the Licence Agreement, that the third party has agreed to be bound by the Licence Agreement including all terms and conditions and that such person has express authority to act on behalf of and bind such third party.
2.6 Material supplied for preview or screening purposes is provided only with a time-code in vision and is for internal use. Broadcast or other dissemination by whatever means is strictly forbidden.
2.7 The Licence Fee is payable and non-refundable once the Licensee has requested broadcast-quality Material, irrespective of whether the Licensee uses the Material or not.
2.8 If the Licensee wishes to change the Licence Agreement in any way, the Licensee must contact DBP (or its representative) and pay the appropriate Licence Fee for the amended rights.
2.9 The Licence granted is specific to a named Licensee Work. If the Licensee Work is altered in any way, the Licensee must notify DBP immediately and an additional License Fee may be payable.
2.10 DBP reserves the right, at its sole discretion, at any stage to withhold Materials even if it has already supplied said Materials for preview purposes.
2.11 The Licensee shall maintain in place effective copy protection security and file sharing deterrents in accordance with current industry standards as long as any Material is made accessible by the Licensee via media which allows the end-user to store a copy (e.g. internet and mobile devices).
2.12 The Licensee may not falsely represent, expressly or impliedly, that the Licensee is the original creator of a visual work that derives a substantial part of its artistic components from the Material.
3. CREDIT AND INTELLECTUAL PROPERTY
3.1 The Licensee acknowledges that ownership of and all copyright in the Material shall remain with DBP.
3.2 The Licensee must always provide the credit “David Barlow Photography” in an appropriate and prominent place in or adjacent to the Licensee Work. The Licensee shall not be liable for any casual or inadvertent failure to provide credits, provided that the Licensee shall use its best endeavours to remedy such failure once it is notified of the same.
3.3 The Licensee will immediately notify DBP if it becomes aware or suspects that any third party that has gained access to the Material through the Licensee is wrongfully using the Material, in whole or in part, or is violating any of DBP’s intellectual property rights.
The Licensee hereby indemnifies DBP, and shall keep DBP fully and effectively indemnified, against all costs (including without limitation legal costs), damages, losses and liabilities incurred by DBP arising out of or as a result of claims by third parties relating to (i) any breach by the Licensee of its obligations under the Licence Agreement; and (ii) any claim made against DBP in respect of or arising out of any use or exploitation of the Material by the Licensee (save only where such claim arises out of a breach by DBP). DBP shall notify the Licensee in writing of any such claim, reasonably consult with the Licensee on the defence of such claim and shall agree to any reasonable settlement thereof, in each case at the Licensee’s cost.
5.1 a) In consideration for the rights granted to the Licensee by DBP in this Licence Agreement, the Licensee will pay to DBP (or its nominated representative) the Licence Fee, associated Costs and any Value Added Tax (VAT) (if applicable), free of any rights of counterclaim or set-off and without any deductions or withholding whatsoever, save only as may be required by any applicable law.
b) DBP or its representative will provide the Licensee with a written quote in relation to the Licensee’s requested use of the Material in the Licensee Work, including details of the Licence Fee, associated Costs and any Value Added Tax (VAT) (if applicable) payable. This written quote will be open for acceptance by the Licensee for a period of 30 days from the date of issue. Should the Licensee accept the written quote provided by the Licensee or should the parties agree terms for a different use/fee, DBP or its representative will then issue the Licence Agreement for signature including the agreed commercial terms and these terms and conditions. There will be no legally binding agreement in place between DBP and the Licensee in relation to the grant of a licence to use the Material until such time as the Licence Agreement issued by DBP or its representative has been signed by both parties.
5.2 Unless otherwise agreed in writing, payment of the Licence Fee and Costs must be made in advance of delivery of the Material to the Licensee, by credit or debit card only. If it is agreed that an invoice may be issued for payment, such payment shall be due within thirty (30) days of the date of invoice. In the event of late payment and without prejudice to any other rights and remedies of DBP, interest shall be levied at a rate of 2% above Barclays base rate from the due date until payment is made.
5.3 All payments shall be made net of any applicable tax, duty, bank charge or other deduction. If any deduction or withholding is required by law to be made from any of the sums payable pursuant to this Licence Agreement, the Licensee shall provide DBP (or its representative) with all assistance and information as required to enable DBP (or its representative) to recover or be credited with the sums deducted or withheld or to enable to Licensee to avoid or be exempted from making any such deduction or withholding (in whole or in part)
5.4 When the Licensee makes payment of the Licence Fee and Costs for the Material, DBP’s representative, Pioneer, will collect personal information from the Licensee (including but not limited to name, company name, email address, payment address etc.). All such information is treated as confidential and will be held on a secure server. DBP via its authorised representative, Pioneer, will fully comply with all applicable Data Protection legislation.
6. DELIVERY OF MATERIALS
6.1 DBP shall use all reasonable efforts to deliver the Material as selected by the Licensee during the order process within the Standard Delivery Time (or as soon as possible thereafter). The Licensee acknowledges that DBP shall not be liable in any way for failure to deliver within the Standard Delivery Time and the Licensee shall remain liable to pay the Licence Fee and other Costs due to DBP in accordance with this Licence Agreement.
6.2 The Licensee shall be deemed to have accepted the Material unless DBP receives notification of any defect(s) (excluding any aesthetic or artistic effects) that prevents use, within fifteen (15) Working Days of receipt of the Material. Notification shall include written details in English of the nature of the defect(s) and the timecode(s) for the site of the defective footage.
6.3 The Licensee must return any defective Material to DBP as soon as possible following discovery of the defect(s).
6.4 If the defect(s) in the Material is found to be the fault of DBP, DBP will retransmit or redeliver the Material to the Licensee, or may refund the Licence Fee in whole or part (at its election).
7.1 DBP warrants that:
a) it has the right, power and authority to enter into and fully perform its obligations under this Licence Agreement; and
b) it will use reasonable endeavours to ensure that the Material delivered will be free from defect(s).
8.1 DBP shall be entitled by notice in writing to the Licensee to terminate this Agreement in any of the following circumstances:
a) if there is a material breach by the Licensee of any of the terms and conditions of this Licence Agreement and where, if the breach is capable of remedy, the Licensee fails to remedy the breach within 10 Working Days of receipt of notice of breach;
b) if the Licensee goes in to receivership or liquidation (other than for the purposes of solvent amalgamation or reconstruction) or anything analogous to any of the foregoing occurs to the Licensee anywhere in the world.
8.2 On termination of this Agreement on any of the grounds above, the Licensee shall cease all use of the Material with immediate effect. Further, the Licensee shall pay to DBP the remuneration due to DBP under this Agreement up to the date of the event giving rise to termination.
8.3 Notwithstanding termination for whatever reason:
a) each party will remain entitled to enforce any claim against the other party arising from any breach of this Agreement that may have occurred before termination; and
b) the indemnity given to DBP by the Licensee in clause 4 shall continue in full force and effect notwithstanding termination of this Agreement.
9. NO PARTNERSHIP
Nothing in the Licence Agreement shall be deemed to constitute a partnership, agency or joint venture between the parties and neither party shall do or permit any act to be done whereby it may be represented as being the agent or partner of the other.
If one or more of the provisions contained in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.
11. GOVERNING LAW
The Licence Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Terms and conditions as of February 2014