9. Client Materials
9.1 The Client must supply to the Photographer the Client Materials specified in REFERENCE TARGET REMOVED, in accordance with any timetable specified in REFERENCE TARGET REMOVED.
9.2 The Client hereby grants to the Photographer a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Materials to the extent reasonably required for the performance of the obligations of the Photographer and the exercise of the rights of the Photographer under these Terms and Conditions, together with the right to sub-license these rights.
9.3 The Client warrants to the Photographer that the Client Materials will not infringe the Intellectual Property Rights or other legal rights of any person in any jurisdiction and under any applicable law.
10. Intellectual Property Rights
10.1 The Photographer hereby assigns to the Client all of its Intellectual Property Rights in the Deliverables, whether those Intellectual Property Rights exist on the Effective Date or come into existence during the Term. This assignment is for the full term of the assigned rights, including all extensions, renewals, reversions and revivals, and includes the right to bring proceedings for past infringements of the assigned rights.
10.2 The Photographer shall ensure that the Third Party Materials are:
(a) licensed to the Client on reasonable terms notified by the Photographer to the Client; or
(b) sub-licensed by the Photographer to the Client on the basis of a non-exclusive, worldwide, perpetual and irrevocable licence to use the Third Party Materials in connection with the Deliverables,
as reasonably agreed between the parties from time to time.
10.3 The Photographer must use reasonable endeavours to:
(a) do or procure the doing of all acts; and
(b) execute or procure the execution of all documents,
that the Client may reasonably request from time to time in order to perfect or confirm the Client’s ownership of the rights assigned by these Terms and Conditions.
11. Moral rights
11.1 The moral right of each author of the Deliverables to be identified as an author in accordance with Sections 77 and 78 of the Copyright, Designs and Patents Act 1988 is hereby asserted.
11.2 The Photographer acknowledges that, under Section 85 of the Copyright, Designs and Patents Act 1988, if the Deliverables have been commissioned by the Client for private or domestic purposes, the Client has the rights not to have:
(a) copies of the Deliverables issued to the public;
(b) the Deliverables exhibited or shown in public; and
(c) the Deliverables communicated to the public,
except as expressly permitted by law or agreed by the Client.
12. Charges
12.1 The Client shall pay the Charges to the Photographer in accordance with these Terms and Conditions.
12.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.
12.3 The Photographer may elect to vary any element of the Charges by giving to the Client not less than 30 days’ written notice of the variation
13. Payments
13.1 The Photographer shall issue invoices for the Charges to the Client in advance of the delivery of the relevant Services to the Client.
13.2 The Client must pay the Charges to the Photographer within the period of 30 days following the receipt of an invoice issued in accordance with this Clause 13.
13.3 The Client must pay the Charges by debit card, credit card or bank transfer (using such payment details as are notified by the Photographer to the Client from time to time).
13.4 If the Client does not pay any amount properly due to the Photographer under these Terms and Conditions, the Photographer may:
(a) charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
14. Photographer’s confidentiality obligations
14.1 The Photographer must:
(a) keep the Client Confidential Information strictly confidential;
(b) not disclose the Client Confidential Information to any person without the Client’s prior written consent, and then only under conditions of confidentiality approved in writing by the Client;
(c) use the same degree of care to protect the confidentiality of the Client Confidential Information as the Photographer uses to protect the Photographer’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Client Confidential Information; and
(e) not use any of the Client Confidential Information for any purpose other than [specify purposes].
14.2 Notwithstanding Clause 14.1, the Photographer may disclose the Client Confidential Information to the Photographer’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Client Confidential Information for the performance of their work with respect to the Contract and who are bound by a written agreement or professional obligation to protect the confidentiality of the Client Confidential Information.
14.3 This Clause 14 imposes no obligations upon the Photographer with respect to Client Confidential Information that:
(a) is known to the Photographer before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Photographer; or
(c) is obtained by the Photographer from a third party in circumstances where the Photographer has no reason to believe that there has been a breach of an obligation of confidentiality.
14.4 The restrictions in this Clause 14 do not apply to the extent that any Client Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Photographer on any recognised stock exchange.
14.5 The provisions of this Clause 14 shall continue in force indefinitely following the termination of the Contract.
15. Photographer’s publicity obligations
15.1 The Photographer must not make any public disclosures relating to the Contract or the subject matter of the Contract (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the Client.
16. Data protection
16.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Client Personal Data.
16.2 The Client shall only supply to the Photographer, and the Photographer shall only process, in each case under or in relation to the Contract, the Personal Data of identity of the following types: name, address, contact number, bank details; and the Photographer shall only process the Client Personal Data for the following purposes: business purposes.
16.3 The Photographer shall only process the Client Personal Data during the Term, subject to the other provisions of this Clause 16.
16.4 The Photographer shall only process the Client Personal Data on the documented instructions of the Client (including with regard to transfers of the Client Personal Data to a third country under the Data Protection Laws), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
16.5 The Photographer shall promptly inform the Client if, in the opinion of the Photographer, an instruction of the Client relating to the processing of the Client Personal Data infringes the Data Protection Laws.
16.6 Notwithstanding any other provision of the Contract, the Photographer may process the Client Personal Data if and to the extent that the Photographer is required to do so by applicable law. In such a case, the Photographer shall inform the Client of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
16.7 The Photographer shall ensure that persons authorised to process the Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
16.8 The Photographer and the Client shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Client Personal Data.
16.9 The Photographer must not engage any third party to process the Client Personal Data without the prior specific or general written authorisation of the Client. In the case of a general written authorisation, the Photographer shall inform the Client at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Client objects to any such changes before their implementation, then the Photographer must not implement the changes. The Photographer shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Photographer by this Clause 16.
16.10 The Photographer shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Client with the fulfilment of the Client’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
16.11 The Photographer shall assist the Client in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.
16.12 The Photographer shall make available to the Client all information necessary to demonstrate the compliance of the Photographer with its obligations under this Clause 16 and the Data Protection Laws.
16.13 The Photographer shall, at the choice of the Client, delete or return all of the Client Personal Data to the Client after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
16.14 The Photographer shall allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client. The Photographer may charge the Client at its standard time-based charging rates for any work performed by the Photographer at the request of the Client pursuant to this Clause 16.14.
16.15 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Contract, then the parties shall use their best endeavours promptly to agree such variations to the Contract as may be necessary to remedy such non-compliance.
17. Warranties
17.1 The Photographer warrants to the Client that:
(a) the Photographer has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions; and
(b) the Photographer will comply with all applicable legal and regulatory requirements applying to the exercise of the Photographer’s rights and the fulfilment of the Photographer’s obligations under these Terms and Conditions.
17.2 The Client warrants to the Photographer that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
17.3 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.
18. Limitations and exclusions of liability
18.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party’s statutory rights will not be excluded or limited by these Terms and Conditions, except to the extent permitted by law.
18.2 The limitations and exclusions of liability set out in this Clause 18 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 18.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
18.3 The Photographer will not be liable to the Client in respect of any losses arising out of a Force Majeure Event.
18.4 The Photographer will not be liable to the Client in respect of any loss or corruption of any data, database or software.
18.5 The Photographer will not be liable to the Client in respect of any special, indirect or consequential loss or damage.
19. Termination
19.1 The Photographer may terminate the Contract by giving to the Client not less than 30 days’ written notice of termination. The Client may terminate the Contract by giving to the Photographer not less than 30 days’ written notice of termination.
19.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of the Contract.
19.3 Subject to applicable law, either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.
19.4 The Photographer may terminate the Contract immediately by giving written notice to the Client if:
(a) any amount due to be paid by the Client to the Photographer under the Contract is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Photographer has given to the Client at least 30 days’ written notice, following the failure to pay, of its intention to terminate the Contract in accordance with this Clause 19.4.
20. Effects of termination
20.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 6.5, 10.2, 10.3, 13.2, 13.4, 14, 15, 16, 18, 20, 21.2 and 22.
20.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Contract shall not affect the accrued rights of either party.
21. Status of Photographer
21.1 The Photographer is not an employee of the Client, but an independent contractor.
21.2 The termination of the Contract will not constitute unfair dismissal; nor will the Photographer be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Contract.
22. General
22.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
22.2 The Contract may not be varied except by a written document signed by or on behalf of each of the parties.
22.3 The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.