Terms and Conditions of Engagement
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.
SECTION 9 – DATA PROTECTION
(We apologise for how boring this section of the Terms and Conditions is, however there isn’t a prettier way to cover off our GDPR obligations. We’ve been as concise as possible):
For the purposes of this Section 9, “Data Protection Legislation” shall mean: (i) the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and any national implementing law, regulations and secondary legislation, as amended or updated from time to time in the UK and (ii) any successor legislation to the GDPR or the Data Protection Act 2018. “Applicable Laws” means (for so long as and to the extent that they apply to the Client) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law. “Domestic UK Law” means any data protection legislation from time to time in force in the UK, including the Data Protection Act 2018 or any successor legislation, and any other law that applies in the UK. Terms such as “Processing (Process and Processes)”, “Personal Data”, “Controller” and “Processor” shall have the meaning given to them in the Data Protection Legislation.
9.1 Where Ben Battell Photography Processes Personal Data on behalf of the Client in providing the Services under the Agreement, the provisions of this Section 9 shall apply. Both parties will comply with all applicable requirements of the Data Protection Legislation in performing their obligations under the Agreement. This Section 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.2 Purpose and Nature of Processing.
(a) The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and Ben Battell Photography is the Data Processor in respect of all Personal Data Processed by Ben Battell Photography for or on behalf of the Client for the purposes of producing the Delivery Materials under the Agreement.
(b) Schedule 1 describes the subject matter, duration, nature and purpose of processing and the Personal Data categories and Data Subject types in respect of which Ben Battell Photography may process to deliver the Services, and any variations to this shall be set out in the individual Quote.
9.3 Processing of Personal Data by Ben Battell Photography.
When Ben Battell Photography Processes Personal Data for or on behalf of the Client, Ben Battell Photography agrees to Process Personal Data solely for the purpose of producing the Delivery Materials and in accordance with the Client’s instructions from time to time and Ben Battell Photography shall not permit the Processing of the Personal Data for any other purpose unless required by Applicable Laws. If Ben Battell Photography considers the Client’s instructions may conflict with the requirements of the Data Protection Legislation, Ben Battell Photography shall immediately notify the Client for clarification and where requested provide reasonable details to support any assertion that the Client’s instructions may be unlawful. Ben Battell Photography shall ensure that all personnel who have access to and/or Process Personal Data are obliged to keep the Personal Data confidential.
9.4 Sub processors.
Ben Battell Photography shall not engage another Data Processor (a “Sub processor”) for carrying out any Processing activities in respect of the Personal Data under the Agreement without Client’s prior written consent. Where such consent is given, it is conditional on Ben Battell Photography entering into a written agreement with the Sub processor that: (i) incorporates terms which are the same as those set out in this Section 9; (ii) provides sufficient guarantees to implement appropriate technical and organisational measures in compliance with the Data Protection Legislation; and (iii) terminates automatically on termination or expiry of the Agreement for any reason. Ben Battell Photography shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this Section 9.4
9.5 Co-operation and Assistance.
Ben Battell Photography shall provide the Client with full co-operation and assistance in relation to the Client’s obligations and rights under Data Protection Legislation, including providing the Client with all information and assistance necessary to investigate security breaches, carry out data protection impact assessments, or otherwise to assess or demonstrate compliance by the parties with Data Protection Legislation.
9.6 Security of Personal Data.
Ben Battell Photography shall implement and maintain, at its cost and expense, appropriate technical and organisational measures in relation to the Processing of Personal Data by Ben Battell Photography under the Agreement:
(a) such that the Processing will meet the requirements of Data Protection Legislation and ensure the rights of Data Subjects;
(b) so as to ensure a level of security in respect of the Personal Data Processed by it is appropriate to the risks that are presented by the Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed; and
(c) to assist the Client in the fulfilment of its obligations to respond to requests from Data Subjects relating to the Personal Data.
9.7 Security breaches.
Ben Battell Photography shall promptly, and in any event within twenty-four (24) hours of becoming aware, notify the Client in writing if it becomes aware of any accidental or deliberate, unauthorised or unlawful acquisition, destruction, loss, alteration, corruption, access, use or disclosure of Personal Data under the Agreement or in breach of its security obligations under the Agreement. In addition, Ben Battell Photography shall promptly provide to the Client full details of the incident at issue and assist the Client in investigating the incident and identifying actions designed to prevent recurrence and use reasonable steps to prevent recurrence.
9.8 International Transfers of Personal Data.
Ben Battell Photography shall not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(a) Ben Battell Photography or the Client have provided appropriate safeguards in relation to the transfer;
(b) the Data Subject has enforceable rights and effective legal remedies;
(c) Ben Battell Photography complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) Ben Battell Photography complies with reasonable instructions notified to it in advance by the Client with respect to the Processing of the Personal Data.
9.9 Retention and Return of Personal Data.
On termination of the Agreement, Ben Battell Photography shall, at the Client’s written request, delete or return all Personal Data and copies thereof to the Client unless storage of the Personal Data is required by Applicable Laws (and, if so, Ben Battell Photography shall inform the Client of any such requirement).
9.10 Inspection and Audit Rights.
Ben Battell Photography shall maintain complete, accurate and up-to-date records to demonstrate its compliance with this Section 9 and the Data Protection Legislation. Ben Battell Photography shall allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client for the purpose of demonstrating its compliance with its obligations under this Section 9.
9.11 For the avoidance of doubt, the provisions of this Section 9 will survive termination or expiry of the Contract.
SECTION 10 – INDEMNITY AND LIABILITY
10.1 Ben Battell Photography carries industry standard and adequate public liability, employers’ liability and professional indemnity insurances to cover its obligations under this Agreement. For the avoidance of any doubt, Ben Battell Photography shall not be responsible for taking out any errors and omissions insurance or for having the Delivery Materials complied for any applicable law or regulation (including without limitation, Ofcom and ASA) and such responsibility shall remain with Client.
10.2 Nothing in this Agreement shall limit or exclude Ben Battell Photography’s liability for death or personal injury caused by Ben Battell Photography’s negligence, fraud or fraudulent misrepresentation or for any other matter to the extent it would be unlawful to exclude or limit liability.
10.3 Subject to Section 10.2:
10.3.1 Ben Battell Photography shall under no circumstances whatsoever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profits, revenues, contracts and/or goodwill, business or for any special, incidental, indirect or consequential losses (including loss or damage suffered by the Client as a result of an action brought by a third party) arising under or in connection with the Agreement even if such loss was reasonably foreseeable or Ben Battell Photography had been advised of the possibility of the Client incurring it. Ben Battell Photography shall not be held liable for any loss damage or expense resulting from delays in service provision;
10.3.2 Ben Battell Photography’s total liability to the Client in respect of all other losses arising under or in connection with the Services, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Fee paid for the Services under the applicable Quote/s.
10.4 The Client shall indemnify Ben Battell Photography against all damages, costs, claims demands and expenses (including external legal fees) suffered by Ben Battell Photography arising from (i) loss or damage to any equipment caused by Client or Client’s agents or staff (including without limitation where due to provision of contaminated files) and (ii) a breach by Client of any of the terms of the Agreement.
SECTION 11 – GENERAL
11.1 Governing Law
Each party irrevocably agrees that the courts of England and Wales shall have the exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims), and the terms of the Agreement shall be governed by the laws of England and Wales.
The parties shall comply with the Bribery Act 2010 (as may be amended from time to time) and all applicable anti-bribery and corruption laws and regulations.
11.3 No partnership or agency, third party rights
Nothing in the Agreement is intended to or shall be deemed to establish any partnership, joint venture between the parties nor constitute either party the agent of the other for any purpose. Neither party shall have the authority to act as agent of the other or bind the other party in any way. No person or entity who is not a party to this Agreement shall have any right to enforce its terms.
Notices may be given by hand delivery or by email or post. If delivered personally, notice shall be deemed given on the day of posting. If delivered by email, they should be given to the Client Contact and Supplier Contact in the Quote and shall be deemed given on the day of delivery, subject to proof of sending and receipt. Notices by post shall be to the parties’ office address stated in the Quote.
11.5 Formation of Agreement
Email acceptance of a Quote by the Client Contact shall constitute acceptance by Client and Ben Battell Photography of the terms of the Quote and these Terms and Conditions which together form the Agreement.
11.6.1 Each party (Receiving Party) shall keep in strict confidence all information, including technical or commercial know-how, specifications, inventions, processes or initiatives, third party projects and business affairs of whatever kind (Confidential Information), relating to the other party (Disclosing Party), its representatives, employees, agents or subcontractors (Representatives), which comes to the attention of the Receiving Party in any way as a result of the Ben Battell Photography and the Client entering into the Agreement.
11.6.2 The Receiving Party shall only disclose Confidential Information to its Representatives who need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall use reasonable endeavours to ensure that such Representatives comply with the obligations set out in this Section 11.6 as though they were a party to the Agreement.
11.6.3 The Receiving Party may also disclose such of the Disclosing Party’s Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
11.6.4 For the avoidance of doubt, information is not Confidential Information if it (i) is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Receiving Party or its Representatives in breach of the Agreement, (ii) it was, is, or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party’s knowledge, is not under any confidentiality obligation in respect of that information, (iii) it was in the possession of the Receiving Party and at its free disposal before the information was obtained by the Receiving Party, (iv) it is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party, or (v) the parties to the Agreement agree in writing that the information is not confidential or is required to be disclosed by law, including pursuant to the order of any Court or tribunal of competent jurisdiction.
The Parties agree that, in the event that one or more of the provisions of the Agreement are found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of the Agreement and the remainder of the Agreement shall be valid and enforceable.
SCHEDULE 1 – DATA PROCESSING DETAILS
The production of the Delivery Materials in accordance with the Agreement.
To fulfil the Supplier’s obligations to produce the Delivery Materials.
The term of the Agreement.
Any contributors engaged by the Supplier on behalf of the Client for the purpose of producing the Delivery Materials in accordance with the Agreement.
Names, contact details, bank details, fees, addresses and any others stated in an individual Quote.
Special Categories of Personal Data
As shall be stated in the Quote if applicable