Copyright Materials – Licence Agreement
This is a licence agreement between Heavy Man Films (the ‘Licensor’) and you (‘the Licensee’). Any images and/or video or audio recordings supplied by the Licensor to the Licensee (‘Materials’) are detailed on the relevant invoice and are subject to the Standard Licencing Terms (“Terms”) as detailed below and amended from time to time by the Licensor. Unauthorised use of any of the Licensor’s Materials is prohibited and legal enforcement action may be taken. Unauthorised use of the Licensor’s Materials will also incur an unauthorised usage penalty fee (see 6. below).
By using any Materials in any way, you agree to be bound by these Terms and this Agreement.
1. Copyright and Usage
The entire copyright in the Materials is retained by Heavy Man Films (the ‘Author’) at all times throughout the world. The Author and / or the Licensor may from time to time at their sole discretion select Materials (in part or in whole, in physical and / or digital form) for inclusion in a display, showreel or portfolio or for other purposes including but not limited to entering into photographic competitions or other exhibitions. Where any such use results in a benefit (for example a competition prize or exhibition fee) that benefit shall be retained exclusively by the Author and / or Licensor.
Unless otherwise agreed in writing by the Licensor, on payment of the agreed fee the Licensee is granted a non-exclusive and non-transferrable licence to use the Materials subject always to the Terms. Any restrictions on the Licensee’s use of the Materials will be will be detailed on the relevant invoice.
For example the Licensee may only be permitted to reproduce the Materials up to a certain size or for a limited time period. The invoice will also detail whether any exclusivity of use has been included (for example, the Licensor may agree to only supply the Materials to the Licensee on an exclusive basis for a certain time period or in a specific geographic territory). Unless otherwise stated on the invoice, the Licensee is permitted the following uses of the Materials:
– non-exclusive use of the specified Materials; and
– for a one year period following the date of invoice (the ‘Term’); and
– in the Republic of Ireland; and
– in any medium (e.g. print, online, inclusion in presentations etc); and
– for ‘below the line’ use only (i.e. excluding paid for advertising); and
– uses which do not require a release (see Clause 2 below).
In any event (including, for the avoidance of doubt, where an ‘all use’ licence is granted) the Licencee may not use the Materials for any ‘Non-Permitted Uses’ (see Clause 4 below).
When the Term has expired the Licensee will destroy the Materials and any copies held by the Licensee and cease all uses of the Materials within a period of 30 (thirty) days. This shall not apply to printed materials containing any images from the Materials produced by the Licensee in the course of its usual trade activities which may continue to be used in the normal way. However no new use of the Materials may be made including but not limited to reprinting or copying any items which may contain the Materials unless the Materials are re-licenced.
Unless otherwise agreed in writing by the Licensor, no licence granted under these Terms may transferred to any third party.
Unless specifically stated in writing by the Licensor, Materials are not model or property released and may not be used for advertising or other uses requiring such a release (e.g. product endorsement etc). However, they may be used for news or similar uses which do not require such a release. It is the responsibility of the Licensee to determine where such a release may or may not be required in any particular case.
3. Third Party Rights
It is the responsibility of the Licensee to ensure that usage of any Materials does not infringe the rights (whether in law or other rights) of any person who appears in or property owner whose property is depicted in any of the Materials. The Licensee agrees that it will indemnify and hold the Author and the Licensor and its directors, employees, agents and representatives harmless for any liabilities or damages arising out of the Licensee’s use of any Materials supplied under these Terms and also for any breach of these Terms by the Licensee.
4. Non-permitted Uses
The Licensee agrees that it will not use any Materials for any of the following uses without the prior written approval of the Licensor:
– creation of a skin, splash-screen, wall-paper or screen saver which will be supplied as part of any paid-for package or download offering
– creation of a postcard, greetings card, poster, mouse mat, mug, key ring or any other form of printed material which will be sold for commercial gain except that images may be used in newspapers, newsletters, magazines, brochures or similar printed materials which will be sold where the image is not the primary focus of the publication or product
– any use which in the Licensor’s sole discretion may be deemed offensive, embarrassing or otherwise inappropriate – including but not limited to pornography; materials discriminating on grounds of race, gender, sexuality, age; illegal or immoral activities; promotion of alcohol or tobacco; birth control activities; usage that implies or otherwise suggests any characteristic or trait onto any person(s) depicted – for example implying that a person in an image is of a specific sexuality, has a criminal record, suffers from a disease or uses medication or other drugs etc
Any sale of any Materials or onward transfer of any licence in relation to the Materials is expressly prohibited without the prior written consent of the Licensor.
For the avoidance of doubt, where an ‘all use’ licence is specified on any invoice, the Licensee may not use the Materials for any of the ‘Non-permitted Uses’ as detailed above without the prior written permission of the Licensor.
Neither the Licensor nor its directors, employees, agents or representatives shall be liable for any damages howsoever caused whether direct or indirect arising out of or otherwise relating to the use of, or the inability to use, any website of the Licensor or any Materials. The Licensee agrees that it will indemnify and hold the Author and the Licensor and its directors, employees, agents and representatives harmless for any liabilities or damages arising our of the Licensee’s use of any Materials supplied under these Terms and also for any breach of these Terms.
Where the Licensee fails to make payment of any invoice as per the payment terms specified on the invoice, the Licensor may without prejudice to any other remedy available to it suspend or revoke the Licensee’s rights under this Agreement and / or charge interest at the rate prescribed by the Late Payment of Commercial Debt (Interest) Act 1998 from the date payment was due until the date payment is made. The payment due date shall be determined solely by the payment terms stated on the Licensor’s invoice. Where no term is specified, payment will be due 30 days following the date of invoice. The Licensee or its agents may not use the Materials in any way after the payment due date where payment has not yet been received by the Licensor.
A payment is deemed received either when cash is delivered to the Licensor (by prior arrangement) and a timed receipt is issued or where funds are sent (either by electronic transfer or cheque) and those funds have cleared in the Licensor’s bank account. This may include a delay of up to a further three working days to allow the Licensor to deposit any cheque. For the avoidance of doubt, it is the responsibility of the Licensee to ensure that funds are received by the Licensor on or before close of business on the payment due date.
If payment has still not been received for ANY invoice 28 days after the payment due date, the Licencee’s rights in respect of ALL overdue invoices will automatically be suspended until all overdue payments have been received in full. Any use of the Materials during the suspension period WILL be unauthorised and WILL incur a Penalty Charge of no less than 6 (six) times the Licensor’s prevailing standard usage fee which will be based on the National Union of Journalists Freelance Photography ‘High Budget’ rates or similar. For the avoidance of doubt, other unauthorised usage (including any usage after the payment due date but where payment has not been received) may incur all or part of the Penalty Charge at the sole discretion of the Licensor. Penalty charges must also be paid and received in full before the Licencee’s rights are restored.
Unless a rejection fee has been agreed in advance, there is no right to reject any Materials on the basis of style or composition.
The Licensee shall ensure that the Materials are stored safely and securely and are only made available to authorised users. The Licensee shall not pass the Materials or otherwise allow the Materials to be distributed to any third party save for the permitted use(s) as detailed in Clause 1 of this Agreement.
Subject always to the Terms and in particular clause 4 above, the Licensee may manipulate the Materials as required to achieve its desired output.
10. Expenses Only / TFP (Time for Prints) / Discounted Fee Arrangements
Where the Licensor has agreed to act on an expenses only, time for prints or other discounted fee arrangement, only those images which are supplied edited and re-touched may be used by the Licensee. All images used must always be accompanied by a photo credit as stated on the relevant invoice. Where no photo credit is stated, the default ‘Louis James-Parker’ must always be used. Any other images supplied which have not been edited and re-touched by the Licensor are for preview purposes only and may not be used in any way or passed on by the Licensee until either edited and re-touched by the Licensor (which may be subject to a separate fee schedule) or otherwise edited and re-touched to the Licensor’s written satisfaction by a design or other professional agency.
The Licensor may change these Terms from time to time by notifying the Licensee in writing (including email) of such changes 30 (thirty) days in advance. In the event that the Licensee objects to any such changes it may cancel this Agreement by informing the Licensee in writing (including email) of its intention to do so. In the event that the Licensee cancels the Agreement under this Clause 11, it shall immediately cease its use of the Materials and no refund of any monies paid by the Licensee to the Licensor shall be made.
The terms of this Agreement shall be governed by and construed in accordance with Irish law and the Irish courts shall have exclusive jurisdiction over all matters arising out of it.