1. In the terms and conditions the following definitions shall apply:-
(a) "The Customer" means any person, firm or company who negotiates
with or contracts to take on loan or licence, or to purchase, the pictures
of Pinnacle Photo Agency Limited.
(b) "Pinnacle Photo Agency Limited" means Pinnacle Photo Agency Limited or any other associated company.
(c) "Picture" includes a photographic print or transparency
or any other item including an electronic image (in the form of a computer
file or otherwise) which may be offered by Pinnacle Photo Agency Limited for
the purposes of reproduction.
(d) "Reproduction" includes any form of publication or copying,
of the whole or part of any Picture and whether or not altered whether
by printing, photography, slide projection (whether or not to an audience)
xerography, artists reference, artists illustration, layout at presentation,
electronic or mechanical reproduction including on-line services, Internet
or CD Rom, or storage by any other means, and "to Reproduce"
shall be construed accordingly.
(e) "Reproduction Fee" is the fee agreed upon between the
parties to cover Reproduction of the Pictures.
(f) "Return Date" is the date by which the Pictures must be
2. The conditions apply to all orders, supplies and reproductions
of Pictures from or by Pinnacle Photo Agency Limited, and shall apply in place
of and prevail over any terms and conditions contained or referred to
in the Customer's order or correspondence or elsewhere or implied by
trade practice or course of dealing. No variation of terms and conditions
set out herein shall be effective unless agreed in writing by both parties.
Loan of Pictures
3. If any of the Pictures supplied shall give rise to a publication
right or to any similar rights in the United Kingdom or in any other
country those rights shall belong exclusively to Pinnacle Photo Agency Limited.
The Customer undertakes to do all such things and to procure that any
third parties in whom such rights may otherwise vest do all such things
and sign and execute all such documents as may reasonably be required
to vest all such rights exclusively in Pinnacle Photo Agency Limited.
4. Pictures are supplied to the Customer by way of loan only.
No property or copyright in any pictures shall pass to the client whether
on their submission or on Pinnacle Photo Agency Limited's grant of reproduction
rights in respect thereof.
5. Pinnacle Photo Agency Limited will charge a non-refundable service
fee ("Service Fee") to cover research, administration and
standard postal delivery payable by the Customer on each submission
and resubmission of Pictures whether or not Reproduction Rights are
required or granted. Any fees charged will be based on Pinnacle Photo Agency Limited's
standard rates for the work involved, but will not be less than Pinnacle
Photo Agency Limited minimum Service Fee quoted at the date of the order.
6. Pinnacle Photo Agency Limited shall deliver the Picture to the Customer
according to the Customer's instructions, and unless by standard postal
delivery, at the Customer's cost. All Pictures shall be deemed to have
left Pinnacle Photo Agency Limited's premises in good condition unless noted
otherwise, or unless within 2 days of receipt Pinnacle Photo Agency Limited receives
notification of any discrepancy or damage.
7. Each Picture may be held by the Customer without charge until
the Return Date specified ("Free Holding Period"). If no Return
Date is specified or otherwise agreed in writing it shall be one month
from the date of dispatch. This Free Holding Period may be extended
at the discretion of Pinnacle Photo Agency Limited. If the picture is not returned
by the Return Date or any such extension, Pinnacle Photo Agency Limited reserves
the right to levy a Holding Charge of £5 per Picture per day pending
its return. Payment of the Holding Charge does not entitle the Customer
to retain the Picture after the Return Date.
8. Risk in and responsibility for the Pictures passes to the
Customer from the time they are received until their safe return. The
Customer shall immediately inform Pinnacle Photo Agency Limited in writing of
any known loss or misuse of, or damage to the Picture whilst in the
Customer's possession or that of any third party. Any Pictures lost
or damaged will be subject to a minimum compensation charge of £350
per picture. This figure has been assessed by Pinnacle Photo Agency Limited as
a genuine preestimate of loss which would be suffered if a Picture were
to be lost or damaged. The Customer is urged to take out adequate insurance
to cover the total value of Pictures delivered. If a Picture is not
returned within 12 weeks of the Return Date, Pinnacle Photo Agency Limited may
in its sole discretion presume it to be lost. The Customer shall be
liable to pay compensation to Pinnacle Photo Agency Limited in respect of each
Picture lost or damaged in addition to the Holding Charges to that date.
Payment of compensation does not give rise to any rights in any Picture
and or ownership in any Picture. For the avoidance of doubt, Pinnacle
Photo Agency Limited will retain absolute ownership of any such Picture.
9. The Customer shall return immediately to Pinnacle Photo Agency Limited
any damaged Picture or any lost Picture which is subsequently found.
If any Picture is reported lost and subsequently found, provided that
it is not damaged, the customer will be credited with the compensation
paid less the Holding Charge (payable under clause 7) from the date
the compensation is claimed to the date the Picture is returned, such
credit being at least 20% of compensation.
10. Any Picture returned without its mount or with its caption
or other mount data missing or defaced, may incur a replacement charge.
11. The Customer must return every Picture to Pinnacle Photo Agency Limited
by the specified Return Date by any method affording proof of delivery
and insured to the relevant level of compensation cover. Adequate protection
must be given to the Pictures in transit. A delivery note listing the
returned Pictures must be enclosed and a letter listing the same information
must be sent by separate post. Any Picture which has been supplied by
electronic means via on-line services and stored on any electrical or
magnetic storage device or by any other means shall, at the specified
Return Date, be destroyed or deleted from any computer or control and
or other device in the Customer's possession or control and such destruction
and or deletion shall be certified in writing to Pinnacle Photo Agency Limited
by the Customer.
12. The Customer may only reproduce the Pictures:
(a) with the prior consent of Pinnacle Photo Agency Limited; and
(b) after payment of the appropriate Reproduction Fee.
13. Possession of the Pictures does not constitute consent to
Reproduce them. The Customer must notify Pinnacle Photo Agency Limited of the
intended use of the Pictures. Pinnacle Photo Agency Limited may at its absolute
discretion, then grant consent to the Reproduction by letter or by invoicing
the appropriate Reproduction Fee and such consent shall be subject to
any terms expressed in the invoice.
14. (a) Until Pinnacle Photo Agency Limited has invoiced the Reproduction
Fee neither party is committed to grant or to acquire any Reproduction
rights in any Picture. After a Reproduction Fee has been agreed and
an invoice issued there is a firm and binding contract whereby Pinnacle
Photography is committed to grant Reproduction rights and the Customer
to acquire them. If after such invoicing but before payment the Customer
requests cancellation of the Reproduction rights Pinnacle Photo Agency Limited
may in its discretion cancel subject to the Customer paying a cancellation
fee of 50% of the Reproduction Fee. If payment has been made and the
Customer requests cancellation of the Reproduction rights then Pinnacle
Photography may in its absolute discretion cancel subject to the Customer
paying a cancellation fee of 75% of the Reproduction Fee. The balance
of the Reproduction Fee will then be returned to the Customer.
(b) The Customer's right to Reproduce a Picture arises only when Pinnacle
Photography's invoice relating to the grant of such Reproduction right
is fully paid. Any Reproduction before payment of the invoice constitutes
an infringement of rights and a breach of this Agreement entitling Pinnacle
Photography to rescind the Agreement and rendering the Customer liable
for the payment of damages.
(c) The Customer agrees to indemnify Pinnacle Photo Agency Limited in respect
of any claims or damages or any loss or costs arising in any manner
from the Reproduction rights of any Picture supplied to the Customer
by Pinnacle Photo Agency Limited. This also includes the case where, if any third
party reproduces any Picture loaned to the Customer, the Customer shall
without prejudice, pay Pinnacle Photo Agency Limited all the fees including Service
Fee, Reproduction Fee and any Holding Charge which that third party
would be liable to pay Pinnacle Photo Agency Limited had the third party borrowed
and reproduced the picture pursuant to these terms.
15. Unless otherwise agreed in writing by the parties, the Reproduction
rights for the Pictures granted by Pinnacle Photo Agency Limited shall:
(a) not be exclusive to the Customer except when specified on the invoice;
(b) be personal to and exercisable only be the Customer and shall not
be assigned without the prior written consent of Pinnacle Photo Agency Limited,
nor may any Picture submitted to the Customer be loaned or transferred
to third parties save for the purpose of the exercise by the Customer
of such Reproduction rights; and
(c) be limited to the precise use, period of time and territory specified
on Pinnacle Photo Agency Limited's invoice and relate to a single publication
in a single size with text (if any) in one language only, unless otherwise
agreed in writing.
16. (a) Any Reproduction rights granted are by way of licence
and no partial or other assignment of copyright shall be implied.
(b) The Customer shall pay all invoices within 30 days of issue save
in the case of newspaper, periodical and broadcasting clients where
payment shall be made no later than the end of the calendar month immediately
succeeding publication or use.
(c) If payment is not made in accordance with 16(b) above, then Pinnacle
Photography may rescind this Agreement and recover damages, or charge
interest on the overdue amount at 3% per month on the outstanding balance.
(d) Pinnacle Photo Agency Limited has the option to terminate this Agreement
by giving written notice to the Customer if:
(i) the Customer is in breach of any term of this Agreement; or
(ii) the Customer becomes insolvent; or
(iii) an administrative receiver or a receiver is appointed or a resolution
is passed to wind up the Customer; or
(iv) the Customer ceases to trade.
If this Agreement is treated as terminated by Pinnacle Photo Agency Limited,
the Customer shall immediately return to Pinnacle Photo Agency Limited all Pictures
which the Customer may have in its possession or under its control.
Any electronic Pictures provided to the Customer via on-line services
and stored on CD-Rom or by any other means shall be destroyed or deleted
from any computer or any other device in the Customer's possession or
control and such destruction and or deletion shall be certified in writing
to Pinnacle Photo Agency Limited by the Customer.
17. Pinnacle Photo Agency Limited does not warrant the accuracy of any description
of Pictures and the identification of persons appearing in them and
therefore the Customer:
(a) shall report any discrepancies to Pinnacle Photo Agency Limited immediately
on their discovery;
(b) acknowledges that Pinnacle Photo Agency Limited shall not be liable to the
Customer for any inaccuracies; and
(c) shall indemnify Pinnacle Photo Agency Limited against any claim, loss or
damage arising directly from the Customer's use of the Pictures.
18. The Customer acknowledges and accepts that because of the age
and origin of some the Pictures and the images contained therein, Pinnacle
Photography gives no warranty or rights to the Customer as to:
(a) the existence or validity of model or other releases in respect
of any Picture or image;
(b) the use of names, people, trade marks, registered or copyright design
or works of art depicted in any Picture or image; or
(c) Moral rights (as set out in chapter IV of the Copyright Designs
& Patents Act 1988) relating to the use of Pictures.
The Customer shall obtain all necessary releases, rights or consents
for all uses and shall indemnify Pinnacle Photo Agency Limited against any loss
or claims arising from the use of the Pictures by the Customer or any
third party without effective release, rights or consents or arising
from any infringement of moral rights relating to use of the Pictures.
19. All Reproduction of Pictures shall be credited to Pinnacle
Photography and, if required by Pinnacle Photo Agency Limited or by law, the
name of the photographer.
20. If any Picture reproduced by the Customer omits the credit line
specified by Pinnacle Photo Agency Limited the Reproduction Fee payable by the
Customer shall be subject to an increase of 50% unless otherwise agreed
in writing. The right to a credit is asserted in accordance with Sections
77 and 78 Copyright, Designs & Patents Act 1988.
21. The Customer shall supply Pinnacle Photo Agency Limited immediately
upon Reproduction, with a verification photocopy, sample or description
of the product which bears the Reproduction.
22. No addition, deletion from or alteration to or adaptation
of a Picture may be made without the prior written permission of Pinnacle
23. Failure by Pinnacle Photo Agency Limited to exercise or enforce any
rights under these terms and conditions shall not be deemed to be a
waiver of any such right nor operate so as to bar the exercise or enforcement
of such rights at any time or times thereafter.
24. Any notice under these terms and conditions shall be deemed
to have been duly given if delivered by hand or sent by prepaid first
class post to the party concerned at its last known address or by facsimile
transmission and shall be deemed to have been received by the addressee
within 48 hours of posting or 24 hours if sent by facsimile transmission
to the correct facsimile number of the addressee.
25. The Agreement shall be subject to and construed according
to English law and the parties agree to accept the exclusive jurisdiction
of the courts of England.