The Agreed Terms The Material 1] The Photographer has created the original photographs in b/w and colour listed in Schedule A ("the Material"). The definitions set out on the front page of this agreement are incorporated herein.
Delivery and Property 2] The Photographer undertakes to deliver the Material, correctly and properly captioned to the Library, on the signing by both parties of this Agreement. Property in the Material remains with the Photographer who shall, at his/her discretion, insure the replacement value thereof. While proper care will be taken of the Material the Library cannot and shall not be responsible for any loss or damage to the Material however caused. Warranties 3a] The Photographer warrants: that the Material is his/her original work that s/he has not entered into any agreement in respect of the Material which would adversely affect the rights granted other than arrangements and restrictions specifically noted to the Library that s/he owns the copyright of all the Material that unless (and to the extent that this is) specified in writing to the Library s/he holds all appropriate consents from copyright owners, in respect of photographs reproducing other copyright material [e.g. paintings] that if appropriate a model release is available in relation to all persons shown in the Material unless stated to the contrary and that s/he has the full power to make this agreement.
3b] The Library warrants that it: · is a member of BAPLA · subscribes to its Code of Conduct for Members and will use its reasonable endeavours to sell the Material at the best obtainable price.
Undertakings of 4] The Photographer undertakes: Photographer not to assign, license or otherwise dispose of the copyright in the Material, not to license, assign or dispose of any interest in other photographs (such as out-takes or photographs showing similar subject matter) which for any reason may cause confusion or which may derogate from the rights granted by this agreement without the Library's prior permission to indemnify the Library against any loss, costs, claims, proceedings, damage or expense occasioned to the Library in consequence of any breach of the warranties, these undertakings or this agreement.
Rights and Assignment 5] In consideration of the payments below the Photographer grants to the Library the right to license the reproduction of the Material to third parties for the term of this Agreement in the Territory specified. The Licence shall be either so exclusive or non-exclusive as specified.
Payments 6] The Library shall act as an independent licensor in respect of the material and does not act as agent for the Photographer. The Library shall pay to the Photographer all and any monies received by it in respect of the use or exploitation of the Material less the library’s commission in respect of all such monies plus VAT thereon. The Library will settle with the Photographer within 30 days of the end of each quarter in respect of all invoices paid during such period.
Audit 7] The Photographer has the right, upon written request, to appoint an auditor to examine the account books of the Library insofar as they relate to the sales of the Material. This audit will be at his/her own expense but should an error in excess of 10% of sums due be discovered during such audit, the Library will pay the reasonable fees of such auditor.
Option 8] Any photographs given by the Photographer to the Library will be on the same terms as this Agreement unless agreed otherwise in writing by both parties.
Term 9a] The Agreement will last for the Initial Term from the date of this Agreement. Thereafter the agreement shall continue indefinitely until terminated by at least 18 months' written notice of termination to expire on or after the expiry of the Initial Term.
9b] Either party may terminate this agreement by notice in writing to the other in the event that the other:- · goes into liquidation or receivership or an administrative receiver is appointed over all or any part of its assets or a meeting of creditors is called or · breaches any term of this agreement which breach is incapable of effective remedy or · breaches any term of this agreement which is capable of remedy but which is not remedied within 30 days of the date of a notice specifying the breach and requiring that party to comply with that term
9c] Termination shall not prejudice licensing agreements then existing or licences issued by the Library or any negotiations which the Library has properly entered into with any third party prior to the date of termination.
9d] After termination no further licences shall be granted and the Material shall be returned to the Photographer as soon as reasonably practicable after termination [and in any case all reasonable endeavours will be made by the Library to return the Material within 18 months of termination].
Exclusive or Non-Exclusive 10] If images are declared to be exclusive then no identical or similar images can be available through any other source. Images shall be assumed to be exclusive unless clearly marked “Non-exclusive”. Non-exclusive images must be listed with all or any restrictions on sales.
Loss of Physical Material 11] In case of any loss, damage or destruction to any physical material, any monies recovered by either the Photographer or the Library by way of compensation, damages or otherwise from any third party shall be shared between the Photographer and the Library in the same way as if such payment were monies received in respect of the use or exploitation of the Material falling within the terms of this Agreement and the Fee shall be payable by the Photographer to the Library accordingly, whether or not monies are received directly by the Photographer or the Library.
Litigation: 12] Each party shall promptly inform the other of any actual or suspected infringement of copyright, breach of moral rights or other matter giving rise to threatened proceedings or claims or demands in respect of any of the Material. The Photographer and the Library shall negotiate in good faith with a view to co-operating in any proposed legal proceedings. For the avoidance of doubt, the Library shall be under no obligation to institute any legal proceedings nor to take steps for the recovery of any fees payable in respect of use of the material whether permitted or unauthorised.
Agreement: 13] This Agreement constitutes the entire understanding between the parties. It may not be varied except in writing signed by both.
Disputes: 14] If any dispute shall arise between the Photographer and the Library out of or in connection with or in relation to this Agreement, the matter shall be resolved by the English courts.
Law: 15] This Agreement shall be governed by and interpreted in all respects in accordance with the Laws of England.