Definitions
For the purpose of this agreement the “Photographer” is Holmes Property Marketing. The “Client” is the party commissioning the Photographer. For the purpose of this agreement the Client shall, where the context so admits, include their respective assignees, sub-licensees and successors in title. “Photographs” means all material furnished by the Photographer, whether electronic or physical. “Fees” means Photographer’s Fees as set out in the estimate or invoice. “Estimate” means any document prepared by the Photographer setting out the Fees and Expenses necessary to produce the Photographs. “Expenses” means any costs necessary to produce the Photographs aside from Fees. “Usage Licence” is the licence granting specific reproduction rights to the Photographs and outlined in the Estimate and Invoice. “The Shoot” is defined as the number of confirmed days whether the job is undertaken as a whole or in separate parts. The “Property” means the residential or commercial structure or dwelling to be photographed for Client.
Copyright and ownership of materials
In accordance with the Copyright, Designs & Patents Act 1988, the entire copyright in the Photographs including ownership and title to all materials is retained by Photographer at all times throughout the world. Where Photographs are stored electronically they must be erased at the conclusion of the agreed usage period.
Indemnity
Photographer shall only be responsible for obtaining clearance in respect of third party copyright works, trademarks, designs or other intellectual property if this has been expressly agreed in writing before the shoot. In all other cases Client 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.
Usage License
The Usage Licence shall where Photographer agrees, come into effect from the date of first use until the sale or letting of the Property. The Usage License only applies to Client and products as stated on the invoice and its benefit shall not be assigned to any third party without Photographer’s permission. Photographer shall in some cases request that no use may be made of the Photographs before payment in full of the relevant invoice(s), without 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 Client is put into receivership or liquidation. Permission to use the Photographs for purposes outside of the terms of the License will normally be granted upon full payment of a further fee, to be agreed with Photographer (and paid in full by Client) before such further use.
Accordingly, even where any form of ‘All Media’ Licence is granted, Photographer’s permission must be obtained before any use of the Photographs for other purposes i.e. use in relation to another product or sub-licensing through a photo library. Any estimate of usage fees to the Client are valid for a period of 30 days only from the Estimate date. Photographer reserves the right to renegotiate the Fees after the period has expired. Unless otherwise agreed in writing, all further Licences in respect of the Photographs will be subject to these terms and conditions. Photographer retains the right in all cases to use the Photographs at any time for the purposes of self promotion and marketing.
The standard Usage Licence includes the following:
MEDIA USAGE
• Company website
• Property listing websites
• Social media
• Award / competition entries
• PR
• Internal communications
• Flyers/Inserts
• Marketing brochures
• Local press advertising
• Portfolio
PERIOD OF USE: Until sale or let of the Property TERRITORY: UK, Ireland and the Internet
An additional Usage Licence with additional Fee will be payable for any of the following usage:
MEDIA USAGE:
• TV/Cinema
• OOH (Out of Home) includes posters, street furniture (bus shelters /kiosks / phone boxes), transit (buses / taxis / subway / lorries / airport / post / bus stations) & alternative (stadiums /bike racks/ petrol pumps/ rest areas)
• Catalogues
• Ambient media (e.g. backs of receipts, petrol pump and trolley handles)
• Exhibitions (e.g. stands, posters, banners, sponsorship, brochures, flyers)
• National Press (Including digital editions)
• Packaging
• Editorials
• Advertorials
• Promotional emails
PERIOD OF USE: Post sale or let of the Property TERRITORY: Outside of UK and IrelandPayment
Client agrees to make final payment of outstanding balance within the timeframe stated on the invoice(s). Client shall where requested, pay a deposit sum of 50% of the fee stated on the invoice by BACS transfer to secure a booking. For new Clients, payment for the first booking shall be payable in full prior to the The Shoot. A Usage License may not be granted to Client until full payment on invoice has been received. Photographer reserves the right to instruct an immediate withdrawal of usage of Photographs from all media until debt has been cleared. Photographer reserves the right to charge interest at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from the date payment was due to the date payment was made. Late payments will incur a compensation/recovery fee of up to £100. Client shall be liable for payment of any legal and/or court fees incurred by Photographer whilst pursuing late payment of invoice(s). Payment of invoice(s) by bank (BACS) transfer only.
Photo correction service
Post processing of photographic images supplied by Client as part of the photo correction service include correction for white balance, lens distortion, shadow recovery, highlight reduction, minor object removal and where applicable blue sky replacement. Removal of some objects within images may incur an additional Fee. Any blurred images that are supplied cannot be sharpened. It is the responsibility of Client to ensure a back-up is made of all images supplied to Photographer. Photographer shall not be liable to Client for any loss of images. Photographer shall not be liable to Client for any loss of sale, profit, business or reduced viewings of a Property, which Client assumes may arise out of or in connection with the photo correction service. Photographer accepts no liability whatsoever should a Property of Client fail to sell or let during the usage of the images. Photographer shall invoice Client on the first day of the month for the photo correction service undertaken during the previous month. Client agrees to make final payment of outstanding balance within the timeframe stated on the invoice(s).
Contingency expense
Where extra Expenses or time are incurred by Photographer as a result of alterations to the original brief, then Client shall be liable to pay such extra Expenses or Fees at Photographer’s normal rate, in addition to the Expenses or Fees already agreed or estimated.
Post production
Fees include post-processing to ensure Photographs are delivered to a high quality. Further Fees shall be applied for any additional post-processing that is requested by Client after the Photographs have been delivered.
Delivery
It is the responsibility of Client to ensure any specific delivery requirements (e.g. ICC profiles, dimensions, colour space) relating to the Photographs are stated before The Shoot. RAW files remain the ownership of Photographer at all times and shall not be assigned to Client, or any third-party on behalf of Client.
Storage
All Photographs and materials are uploaded to a shared online storage folder (Dropbox/ WeTransfer/ Website) accessible between Client and Photographer. It is the responsibility of Client to ensure a back-up is made of all Photographs and materials that are uploaded to the folder. Photographer shall not be liable to Client for any loss of Photographs or documents within the shared folder.
Rejection
If Client is not present during the shoot then the Photographer’s interpretation of the brief is deemed acceptable by Client. There is no right to reject Photographs on the basis of style or composition unless otherwise agreed. Should Client have specific requirements for the shoot, then Client should state this clearly at the time of booking. Any aspects of a Property which were not photographed and which were not specifically requested at the time of a booking shall not act as a means for Client to refuse payment of invoice(s). Should the Photographs be supplied to Client, but then not used, i.e due to a withdrawal of the Property from the market, then Client agrees to make final payment of outstanding balance within the timeframe stated on the invoice(s).
Right to a credit
‘Holmes Property Marketing’ shall be printed on or in reasonable proximity to all editorial and published reproductions of Photographs. Client shall supply Photographer with a copy of any published reproductions where the Photographs have been used. All Photographs used across social media shall, where permitted, be tagged to Holmes Property Marketing and/or referenced to @HolmesPropertyMarketing. The Usage License only applies to Client and products as stated on the invoice and its benefit shall not be assigned to any third party across print, digital or social media without the permission of Photographer.
Property preparation
It is the responsibility of Client to ensure all necessary measures are taken to ensure a Property is presented to a standard deemed acceptable by Client, prior to the date of the shoot. Should Photographer be asked to return for additional work, due to a Property not being presented in the expected state, then an additional Fee shall be charged by Photographer and payable by Client. Photographer shall not be responsible for the moving of anything deemed a health and safety risk during The Shoot.
Property access
It is the responsibility of Client to ensure any information (e.g. address details, alarm codes, parking preferences) relating to a Property are correct prior to the date of The Shoot. Should Photographer fail to gain entry to a Property (e.g. due to incorrect keys or be denied access to a Property), then Photographer reserves the right to charge Client the full value of the booking, as well as any additional expenses incurred by Photographer, or by any third party supplier.
Cancellation
Photographer reserves the right to charge the Client 100% of the Fee or the full value of the booking for any cancellation or postponement of a booking that is requested with less than 24 hours notice of a confirmed booking date. To cancel a booking please email info@holmespropertymarketing.co.uk to confirm your cancellation request. Client is responsible for payment of all expenses incurred up to the time of cancellation. All deposits paid prior to a booking are non-refundable.
Safety
In relation to the Dangerous Dogs Act 1991 and to reduce the risk of injury to Photographer and any damage to equipment owned by Photographer, it is the responsibility of Client to advise the owners or tenants of a Property to ensure pets are kept in gardens or in separate rooms during The Shoot. Photographer can at his or her own discretion refuse to enter a Property should they consider it unsafe to do so. Should Photographer refuse to enter a Property for fear of safety, then Photographer reserves the right to charge Client the full Fee or value of the booking, as well as any additional Fees incurred by a third party supplier. Should the equipment of Photographer be damaged by a pet within a Property, including within the grounds of a Property, then the owner of the pet shall be liable for payment of repair or replacement of any damaged equipment. Should Photographer sustain any injury due to act of aggression from a pet at a Property, then legal action shall be sought against the owner(s) of the pet. Photographer shall not be responsible for the moving of objects or anything within the internal spaces (e.g. furniture) or external spaces (e.g. waste bins) of a Property that may be considered a health and safety risk.
Weather
Occasionally, adverse weather conditions (e.g. snow, fog, high winds) may prevent the photographing of a Property due to poor visibility, or, for health and safety reasons. In such circumstances the Photographer will arrange for an alternative suitable time to return to the Property. An additional charge to Client for re-visiting Property may apply.
Elevated Photography
Occasionally, health and safety issues (e.g. overhead power cables, high winds) may prevent the photographing of a Property. In such circumstances the Photographer will arrange for an alternative suitable time to return to the Property. An additional charge to Client for re-visiting Property may apply.
Liability
Photographer’s liability in any case is limited to professional fees, which have been agreed. Photographer shall not be liable to Client for any loss of sale, profit, business or reduced viewings of a Property, which Client assumes may arise out of or in connection with the Photographs. Photographer accepts no liability whatsoever should the Property of Client fail to sell or let during the usage of the Photographs.
Floor plans
All floor plans are drawn using various skill and care in accordance with the Q-Mark Code of Measuring Practice. Floor plans are for layout purposes only and are not intended to be scale drawings. Measurements are approximate, may have been taken at maximum distances and should not be relied upon for valuation purposes. It is the responsibility of Client to agree that a floor plan is reasonably accurate enough and acceptable for its intended purpose. Photographer accepts no liability whatsoever for any error or omission or inadvertent misstatement in a floor plan. Floor plans shall not be assigned, leased or sold to any third-party, without the express permission of Photographer. Any amendments to floor plans which require additional editing using alternative software, shall incur an additional Fee.
EPC’s
Photographer can source and supply third-party certified Domestic Energy Assessors (DEAs) to provide Energy Performance Certificates (EPCs) for Client. Should a booking request for an EPC be made in a location or postcode where a Certified DEA cannot be sourced, then Photographer shall advise Client accordingly. EPC Fees include the time required for Photographer to source, manage and administer the service for Client. It is the responsibility of Client to agree that an EPC is reasonably accurate enough and acceptable for its intended purpose. Photographer accepts no liability whatsoever for any error or omission or inadvertent misstatement in an EPC. EPCs shall not be assigned, leased or sold to any third-party, without the express permission of Photographer. Any amendments to an EPC may incur an additional Fee.
Applicable Law
This agreement shall be governed by the Laws of England & Wales.
Variation
These Terms and Conditions shall not be varied except by agreement in writing.
Last updated 6th November 2020.