The below are our standard terms and conditions which govern all services that we provide.
1. DEFINITIONS.
(a) For the purpose of this agreement “the Agency” and “the Client” shall where the context so admits include their respective assignees, sub-licensees and successor in title. In cases where the Photographer’s Client is a direct Client (i.e. with no Agency or intermediary), all references in this agreement to both “the Agency” and “the Client” shall be interpreted as references to the Photographer’s Client.
(b) For the purpose of this agreement “The Photographer” & “The Designer” will mean the Author of the Photograph or Secret Red. And shall where the context so admits include their respective assignees, sub-licensees and successor in title.
(c) SR Media Productions including the website at www.secretred.com administers the licensing of the works of the Photographer.
(d) “Photographs” and “Works” means all photographic material furnished by the Photographer, whether transparencies, negatives, prints, digital files or any other type of physical or electronic material in existence now or yet to be developed.
(e) All contracts verbal or written are only accepted on the basis that the Terms and Conditions of the Photographer are the only ones applicable.
(f) Other Terms and Conditions proffered by the Client are specifically excluded unless agreed in writing beforehand by the Photographer.
(g) Where time is of the essence the Photographer entirely at its own discretion may accept an instruction given orally, in this event the Photographer shall accept no liability for any error in executing the order.
(h) Unless the Photographer is given prior written notice by the Client, the person placing or signing the order on behalf of the Client is deemed to be authorised to do so.
(i) When a Client’s policy is not to rely on email confirmations, hardcopy paperwork must be supplied, if none is provided, then the email traffic will constitute a contract in law.
2. COPYRIGHT.
(a) The Author retains the entire copyright in the Photographs and Works at all times, throughout the World and
(b) Where reproduction of Works has taken place and settlement has not been made, the Photographer will make such charges to the publisher of those images as falls within the Copyright, Designs and Patents Act 1988.
3. OWNERSHIP OF MATERIALS.
(a) Title to all Photographs remains the property of the Photographer, unless otherwise agreed in writing with the Client.
(b) When the License to Use has expired the Photographs must be returned to the Photographer in good condition within 30 days and any archived digital files destroyed.
(c) Title to any materials used in producing the Works is not transferred to the Client upon payment of the invoice.
4. USE.
(a) The License to Use comes into effect from the date of payment of the relevant invoice(s).
(b) No use may be made of the Photographs before payment in full of the relevant invoice(s) without the Photographer’s express permission in writing.
(c) Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Agency is put into receivership or liquidation.
(d) Where restricted in the Agreement, permission to use the Photographs for other purposes will normally be granted upon payment of a further fee to be mutually agreed. Note: A written agreement must be reached with the Photographer before the Photographs may be used for other purposes. Where uses of an image are made which breach the licence to use further charges will be made.
(e) Any reproduction rights granted are by way of licence only and no partial or other assignment of copyright shall be implied.
(f) On the Client’s death or bankruptcy or (if the Client is a Company) in the event of a Resolution, Petition or Order for winding-up being made against it, or if a Receiver or an administration is appointed, any licence granted shall immediately cease.
5. EXCLUSIVITY.
(a) Unless agreed to in writing on the License to Use and the Invoice no exclusivity is given or implied to The Agency and/or The Client.
(b) The Photographer retains the right in all cases to use or sell the Photographs. For example to sell additional edits to the client and or to advertise the photographers work.
(c) Exclusivity will not be unreasonably withheld but only on written agreement with the Photographer before work commences.
6. CLIENT CONFIDENTIALITY.
(a) The Photographer will keep confidential and will not disclose to any third parties or make use of information communicated to him/her in confidence for the purposes of the photography, save as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the commission.
7. INDEMNITY.
(a) It is the Client who must satisfy himself/herself/It’s self that all necessary rights, model releases, clearances or consents which may be required for reproduction of people, places or items depicted within any Works are obtained.
(b) It is acknowledged that the Photographer gives no warranty or undertaking that any such rights, releases or consents are or will be obtained whether in relation to the use of names, people, trade marks, registered or copyright designs or Works of art depicted in any picture.
(c) The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed in writing before the shoot.
(d) In all other cases the Client shall indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.
(e) The Photographer will not be liable for any loss or damage, for any consequential loss of profit or income however caused including negligence by the Photographer, their employees or agents or otherwise, and it is the Client’s responsibility to insure against such loss or damage.
8. PAYMENT.
(a) Payment by the Client will be strictly within 30 days of the issue of the relevant invoice for the commissioned work.
(b) Thereafter, further charges may be made for any additional statement, letter (whether as an email, fax, etc) issued for the recovery of the outstanding debt of not less than £15.50 plus VAT each and all other costs for the recovery of debts including bank charges.
(c) A further charge of 5% over the Lloyds TSB Bank rate from time to time is added to the invoice on the first day following that when settlement should have been made. LATE PAYMENT OF COMMERCIAL DEBTS (INTEREST) ACT 1998 will be enforced.
(d) Where a Client is a company and whether or not that company has gone into liquidation the individual directors will be responsible for all outstanding fees and costs in relation to the contract.
(e) Where a deposit is paid to book services in advance, the deposit is non-refundable. If you wish to re-arrange a scheduled photoshoot to another date after a deposit has been paid and the shoot date already confirmed, we will try our best to accommodate this request. If it is not possible to re-arrange the photoshoot for another date, a credit voucher will be issued for the amount of the deposit already paid to be redeemed against a future purchase.
9. EXPENSES.
(a) Any reasonable expenses incurred by the Photographer during or relating to an assignment/project/commissioned job will be charged to the client, such as but not limited to travel expenses, food & beverages, the Client shall be liable to such extra expenses or fees.
(b) Where extra expenses or times are incurred by the Photographer as a result of alterations to the original brief by the Client, or otherwise, the Client shall give approval to and be liable to such extra expenses or fees, in addition to the fees and expenses shown on the Estimate as having been agreed or estimated.
10. REJECTION.
(a) Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.
11. CANCELLATION & POSTPONEMENT.
(a) A booking is considered firm as from the date of confirmation and accordingly the Photographer will, at his/her discretion, charge a fee for cancellation or postponement.
12. RIGHT TO A CREDIT.
(a) The Licence to Use requires that the Photographer’s name ‘Secret Red’ will be printed on or in reasonable proximity to all published reproductions of the Photograph(s). The Photographer also asserts his/her statutory and moral right to be identified in the circumstances set out in Sections 77-79 of the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof.
13. SUPPLY TO THIRD PARTIES.
(a) The licence only applies to the Client and product stated on the Licence to Use.
14. ELECTRONIC STORAGE.
(a) Save for the purposes of production for the licensed use(s), the Photographs may not be stored or archived in any form without the written permission of the Photographer.
(b) Manipulation of the image or use of only a portion of the image may only take place with the written permission of the Photographer.
(c) Digital Data is stored by the Photographer on the understanding that the Photographer is not responsible for the future integrity of that data, or of any failure to retrieve data from the Photographer’s archive.
15. WEBSITE HOSTING & DESIGN
(a) All website designs/themes created by the Designer remain the exclusive property and copyright of the Designer for perpetuity. A licence to use is granted only where the applicable fee has been paid and is current.
(b) All websites using a design/theme created by the Designer must only be hosted on servers provider by the Designer.
(c) If a licence to use is granted free of charge, this does not constitute transfer of ownership. The design/theme remains the exclusive property and copyright of the Designer.
(d) Where a copyright and or designed by notice is displayed on the website design/theme, it is not permissible to be removed.
(e) A free domain name is provided with all websites for the duration of the website subscription. If the subscription is cancelled the domain name will expire 12 months from the anniversary of purchase.
(f) All domain names provided for free can be transferred to a new domain host upon request and for a small fee as published on the website at the time.
(g) Website subscriptions can be cancelled and refunded only before the provision of services. Once the provision of services has been provided they can be cancelled but not refunded.
(h) All subscription fees are due on the anniversary of your start date, either monthly, every 3 months, every 6 months or annually, depending on that which was selected at sign-up and by the payment method selected at sign-up. If payment is not received on the specified anniversary for your subscription a 1 week grace period may be applied before your website is temporarily suspended until payment is received after which an email will be sent to the registered email on your account. If your payment is not received after a further 1 week an email will be send to the registered email on your account informing you that your website will be deleted unless payment is received within a further 7 days.
16. PHOTOSHOOT LOCATIONS
(a) Photoshoot locations booked and or provided with a photoshoot package are for photoshoots only, no lodging is included.
17. COMPLAINTS & DISPUTES
(a) If any dispute arises in connection with this agreement, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure and the mediation will start, unless otherwise agreed by the parties, within 28 days of one party issuing a request to mediate to the other. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
(b) The mediation will take place in London, England and the language of the mediation will be English. The Mediation Agreement referred to in the Model Procedure shall be governed by, and construed and take effect in accordance with the substantive law of England and Wales.
(c) If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, the dispute shall be referred to and finally resolved by arbitration. CEDR shall be the appointing body and administer the arbitration.
(d) CEDR shall apply the UNCITRAL rules in force at the time arbitration is initiated. In any arbitration commenced pursuant to this clause, the number of arbitrators shall be 1 and the seat or legal place of arbitration shall be London, England.
18. APPLICABLE LAW.
(a) This agreement shall be governed by the Laws of England & Wales.
(b) All legal disputes related to card processing are handled under the Laws of England & Wales.
19. VARIATION.
(a) These Terms and Conditions shall not be varied except by agreement in writing.
The below terms and conditions govern all yacht photoshoot charters that we provide in addition to the above terms & conditions.
1. Charter Deposits & Payments
1a. The Charterer shall pay to Secret Red the deposit or full payment if booking made within 4 weeks of charter, upon returning the Contract within the required time stated on the Contract at which time these Conditions shall become binding. Payment of the deposit or full amount means you have accepted our quotation and you accept on behalf of your party the terms of these booking conditions.
1b. We will send you a confirmation invoice with the costs and details of your charter. It is your responsibility to check the details on the confirmation invoice and to inform us of any discrepancies immediately.
1c. The balance of your charter must be paid at least 4 weeks before your charter start date. If the balance is not paid on time we may cancel your charter and apply the cancellation charges set out in the paragraph headed “Cancellation or Amendment” below. The charter deposit is non-refundable unless we are unable to honour your original booking request.
2. Booking Procedure & Requirements
2a. At the time of booking we require from you:-
- 30% Deposit (full payment if booking made within 6 weeks of charter start date)
- Completed Charter Agreement
2b. 6 weeks prior to departure, we will send you:
- Final balance invoice (to be paid 4 weeks prior to charter start date)
- Crew List & Next of Kin details to be completed & returned
- Disclaimer of Liability form (to be completed on arrival)
3. Yacht Condition
In the case where any wilful or negligent damage is caused to the yacht or its equipment by the Charterer, Secret Red reserve the right to charge accordingly.
4. Charter Period
In the event of the Yacht being unavailable on the charter start date, Secret Red will endeavour to replace the Yacht with one of as similar type and specification as possible, to a value up to the total amount of the charter fee paid for the original yacht. Any discrepancy in the charter fees to be met by the Charterer. If a replacement yacht is not available Secret Red will refund the Charter Fee. Secret Red accepts no liability for any expenses incurred by or inconvenience caused to the Charterer as a result of such cancellation.
5. Cancellation or Amendment
5a. In the event of the Charterer cancelling the booking more than 30 days prior to the charter start date, Secret Red will be entitled to keep the Deposit and refund any balance to the Charterer.
5b. In the event of the Charterer cancelling the booking within 30 days prior to the charter start date the charter fees are not refundable. If Secret Red is able to re-charter the Yacht for all or part of the charter period, a proportion of the charter fee may be refunded at the discretion of Secret Red.
5c. Secret Red may cancel the booking at any time upon repayment to the Charterer of all sums already paid.
5d. Cancellation must be received in writing.
5e. If you wish to make any amendments to your charter we will make every effort to accommodate these. Requests for amendments must be made in writing.
5f. We reserve the right in our absolute discretion to terminate without further notice the yacht charter vacation arrangements of any client who refuses to comply with the instructions or orders of the company staff, agent or other responsible person whose behavior in their opinions is likely to cause distress, damage, danger or annoyance to other customers, staff, any third party or to property. Upon such termination our responsibility for your vacation ceases and we shall not be liable for any extra costs incurred by you.
6. Obligations of the Charterer
6a. The details provided by the charterer on the Charter Agreement are complete and accurate.
6b. Not to carry any crew other than those persons specified on the Crew List.
6c. Not to bring aboard any restricted or illegal goods such as drugs, firearms or explosives.
6d. The Charterer will not sub-let or part company with the Yacht without the prior written consent of Secret Red.
6e. There shall be no smoking below deck or while handling sails, by any person.
6f. The Charterer will limit the number of his party to not more than the number allowed for in the provision of safety equipment.
6g. The Charterer undertakes to comply with all seagoing rules and regulations currently in force. For skippered charter, to obey the reasonable requests of the appointed skipper.
6h. No animals or pets may be taken aboard.
7. Obligations of Secret Red
7a. To deliver the Yacht to the Charterer at the Home Port on the charter start date in good and seaworthy condition complete with all items stated in the Yacht’s Inventory.
7b. To insure and keep insured the Yacht against fire and all usual marine and collision risks and including third party risks to such an extent as Secret Red in its absolute discretion shall deem appropriate. Such insurance policy does not cover injury to or loss of life of any person on board against which the Charterer should insure prior to the charter start date.
7c. If during the charter period the Yacht shall be damaged or there is a breakdown of the gear or machinery not caused wholly or in part by the neglect of the Charterer and the Yacht is unfit for use (at Secret Red’s discretion) a pro-rata return of the charter fee may be made for the lost time. Engine breakdown in an auxiliary Yacht does not make the Yacht unfit under this agreement.
8. Weather
Should the Skipper determine the weather to be unsuitable or dangerous for sailing, he may take the decision not to sail the Yacht in these conditions. The charterer & crew must respect his decision, even if this may lead to postponement or, in extreme cases, cancellation of the charter.
9. Termination and Repossession
In the event of it coming to the attention of Secret Red that the Charterer is in material breach of any of these conditions, Secret Red may forthwith terminate this Agreement and take whatever steps are necessary to take possession of the Yacht wherever it may be. Such termination and the taking of possession shall be without prejudice to any rights and remedies which may have accrued to Secret Red prior to the date of such breach.
10. Force Majeure
No liability shall accrue to either party if the other is prevented from fulfilling any of his obligations hereunder by any incidence of Force Majeure, including Act of God, strikes, lock out, Act of Government or Authority or any other occurrence whether similar or dissimilar wholly beyond the control of either party.
11. Law & Disputes
This Agreement is subject to English law. In the event of a dispute arising under this Agreement, the parties agree to use reasonable endeavours to resolve such a dispute by negotiation. If such negotiation fails, any dispute arising under this Agreement shall be submitted to the jurisdiction of the Courts of England and Wales.
