Licensing Guide: Commercial Example – Terms and Conditions

Commercial Example

Due to anti-trust laws, ASMP cannot set or suggest prices, but we can share information provided to us by our generous members. The ASMP Paperwork Share provides a look at the terms, licenses and pricing details of actual jobs.

Below is the text of the Terms & Conditions that Chip Mitchell uses with his estimates and invoices.

ALL ASSIGNMENTS AND LICENSES ARE SUBJECT TO THE FOLLOWING AGREEMENT TERMS AND CONDITIONS

  1. Definitions: This agreement is by and between the “Photographer” (Chip Mitchell) and the “Client” (the commissioning party named on the face of this Agreement, including Client’s representatives). Photographer’s relationship with Client is that of independent contractor. “Image” or “Image(s)” refers to photographic or any other form of materials delivered by Photographer to Client. Photographer shall be considered the sole author of the Image(s). The Image(s) will be the Photographer’s interpretation rather than a literal re-creation of Client’s concept(s) and/or layout(s). “Assignment” refers to the photography assignment described on the face of this Agreement that Client is specifically commissioning pursuant to this Agreement.
  2. Fees, Charges and Expenses: Client and Client’s representatives are jointly and severally responsible for full payment of all fees, charges and expenses. The rights licensed, fees, charges and expenses listed on this Agreement only apply to the original assignment description. Additional compensation may be required for any subsequent changes, additions or variations requested by Client.
  3. Postponements and Cancellations: A Postponement is a rescheduling of the Assignment by the Client, with prior consent of the Photographer, to a mutually agreeable date within 30 calendar days of the original Assignment date. Client is responsible for payment of all fees, charges and expenses incurred up to the time of Postponement. If Client cancels the Assignment, Client is responsible for all fees, charges and expenses incurred up to the time of Cancellation plus 50% of the Photographer’s fees. If Client cancels with less than two (2) business days prior notice from date of Assignment, Client is responsible for all fees, charges and expenses incurred up to the time of Cancellation plus 100% of the Photographer’s fees.
  4. Weather Delays: Client will pay 100% of Photographer’s daily weather delay fee (as set forth on the face of this Agreement) for any delays due to weather conditions or Acts of God, plus all charges and expenses incurred.
  5. Client Approval: Client is responsible for having its authorized representative present during all “shooting” phases of the Assignment to approve Photographer’s interpretation of the Assignment. If no representative is present, Photographer’s interpretation shall be accepted. Client shall be bound by all approvals and job changes made by Client’s representatives.
  6. Overtime: In the event that a shoot extends beyond eight (8) consecutive hours, Photographer will charge overtime for crew members at one-and-one-half their hourly rate or fee.
  7. Reshoots: Client will be charged 100% of Photographer’s fee and expenses for any reshoot required by the Client. For any reshoot required because of an act of God or the fault of a third party, Photographer will charge no additional fee and Client will pay all expenses. If Photographer charges for special contingency insurance and is paid in full for the shoot, Client will not be charged for any expenses covered by insurance. A list of exclusions from such insurance will be provided on request.
  8. Indemnity: Client shall indemnify and hold Photographer and Photographer’s representatives harmless from any and all claims, liabilities and damages, including reasonable attorney fees and court costs arising from Client’s use of the Image(s) or from Photographer’s reliance on any representations, instructions or materials provided or approved by Client.
  9. Copyright: This is not a work made for hire. All Image(s) are © 2006 Chip Mitchell.
  10. Reproduction Rights: The right to reproduce or use any Image(s) is conditioned on Photographer’s receipt of payment in full. Unless otherwise stated on the face of this Agreement, duration of the License is one year from date of Photographer’s invoice and is for English language use in the United States only. Except as expressly licensed by Photographer in this Agreement, Photographer reserves all other rights in and to the Image(s) of every kind and nature. No license is valid unless signed by Photographer on Photographer’s Invoice. No rights licensed may be assigned or transferred to a third party without Photographer’s prior written consent.
  11. Return of Photographs: Client assumes all risk and liability for all photographic material(s) delivered by the Photographer to Client from time of receipt by Client, to time of receipt by Photographer. If no Return Date appears on the face of this Agreement or on any corresponding delivery memo, Client shall return all Image(s) in undamaged, unaltered and unretouched condition within thirty (30) days of first publication of Image(s).
  12. Loss or Damage: The parties acknowledge that it is difficult if not impossible to determine the exact value of each Image subject to this Agreement because of the duration of copyright protection and its present and potential value. Therefore, in case of loss or damage of any original Image(s), Client and Photographer agree that the reasonable value of each original Image is $2000. Client agrees to pay Photographer $2000 for each lost or damaged original Image and Photographer agrees to limit Photographer’s claim to that amount without regard to the actual value of the Image.
  13. Payment and Collection: Invoices from the Photographer are payable upon receipt by Client unless stated differently on face of this Agreement. Full payment must be received by the photographer prior to publication. In the event of non-payment or other breach of this Agreement by Client, Client shall pay all of Photographer’s costs and expenses incurred in connection with enforcement of the terms of this agreement, including Photographer’s reasonable attorney’s fees.
  14. Sales/Use Tax: Client is responsible for payment of applicable sales, use or transit taxes invoiced, and for any subsequent assesment made by sales and/or use tax authorities.
  15. Releases: No model or property release exists for any Image(s) unless Photographer submits a seperate written model or property release to Client.
  16. Storing of Electronic Data: Client is strictly prohibited from digitizing or electronically scanning any Image other than for the purpose of reproducing the Image(s) in accordance with the rights licensed on the front of this Agreement. In no event may Client or Client’s representatives retain or store any kind of electronic data derived from an Image after term of License expires.
  17. Conflict of Terms: In the event of a conflict of terms between this agreement and the Client’s purchase order, all terms of this agreement have been agreed to by both the Photographer and Client and therefore are binding and supercede any terms on the Client’s pre-printed “terms & conditions” found on the back of the Client’s purchase order agreement.
  18. Modification and Governing Law: This Agreement sets forth the entire Agreement between Photographer and Client in regard to the Assignment and/or Image(s). No waiver or modification may be made to any term or condition contained in this Agreement without the express written consent of the Photographer. Client’s reproduction or use of any Image(s) in any manner whatsoever constitutes acceptance of this Agreement. This agreement shall be deemed to be a contract made under the laws of the United States of America and the Commonwealth of Virginia and for all purposes shall be interpreted in its entirety in accordance with these laws. Client specifically and irrevocably confers personal jurisdiction over it by the courts of the Commonwealth of Virginia or the United States District Court for the District of the Commonwealth of Virginia. Client specifically waives all rights to contest each court proceeding on the grounds of personal jurisdiction, venue and forum non-convenience. In the event of any award or judgement in favor of Photographer, or any settlement between Photographer and Client, arising from effecting and protecting Photographer’s rights and benefits hereunder and/or any aspect of this agreement, Client shall pay all costs and expenses incurred by Photographer and/or Photographer’s legal counsel related thereto, including, but not limited to, reasonable legal fees, arbitration and court costs, associated expenses, and legal interest on such award, judgement, or settlement.