TERMS AND CONDITIONS OF SUBMISSION AND REPRODUCTION OF PHOTOGRAPHS

THESE PHOTOGRAPHS HAVE BEEN DELIVERED AT THE CLIENT’S REQUEST. IF ANY CLIENT WHO HAS NOT PREVIOUSLY DEALT WITH THE SUPPLIER ON THE TERMS AND CONDITIONS BELOW DOES NOT ACCEPT THEM SUCH CLIENTS MUST IMMEDIATELY RETURN ALL PHOTOGRAPHS TO THE SUPPLIER BY ANY MEANS AFFORDING PROOF OF DELIVERY. THE CLIENT SHALL BE DEEMED TO HAVE ACCEPTED THE SUPPLIER’S TERMS AND CONDITIONS IF ALL PHOTOGRAPHS ARE NOT RETURNED WITHIN FIVE DAYS OF THEIR RECEIPT BY THE CLIENT IN THE UNITED STATES OR SEVEN DAYS OF THEIR RECEIPT OVERSEAS. NO REPRODUCTION RIGHTS ARE GRANTED IN THIS INITIAL FIVE OR SEVEN DAY PERIOD. ANY CLIENT WHO HAS PREVIOUSLY DEALT WITH THE SUPPLIER ON THE TERMS AND CONDITIONS SET OUT BELOW WILL BE DEEMED TO HAVE ACCEPTED THEM BY VIRTUE OF THE CLIENT’S REQUEST REFERRED TO ABOVE.

Definitions

For the purpose of these terms and conditions (a) PHOTOGRAPH means Transparencies, computer generated facsimiles, digital (i.e.binary) format images, negatives, prints, designs, plates or other representations, records of copies of a Painting, or any other item which may be offered for the purposes of Reproduction, but for the avoidance of doubt does not include the actual work of art depicted in any of the above or in any Painting;(b) PAINTING shall mean any work of art depicted in any Photograph; and (c) REPRODUCTION includes any form of publication or copying of the whole or part of any Painting whether altered or not, and derived from any Photograph whether by printing, photography, slide projection (whether or not to any audience) xerography, artist’s reference, artist’s illustration, layout or presentation, electronic or mechanical reproduction or storage by any other means (d) SUPPLIER shall mean the Bridgeman Art Library, London/New York (e) CLIENT shall mean the company in receipt of this consignment.

Delivery of Photographs

1. The Photographs listed overleaf are submitted at the Client’s request, on approval only.

2. Save where otherwise expressly agreed in writing by the Supplier, a non-refundable service fee (minimum $40.00) is payable by the Client in respect of each submission of Photographs.

3. Photographs will normally be delivered by the Supplier to the Client by first-class mail. Should the Client have requested delivery of the Photographs in a digital format a non-refundable delivery fee shall be payable $50.00 for on-line delivery, on CD-ROM or other disc format. Costs of any other special delivery arrangements requested by the Client shall be paid for by the Client. The total number of Photographs herein listed shall be presumed to have been received by the Client unless written notice to the contrary is received by the Supplier within 48 hours of receipt.

4. The Client acknowledges that prior to any consent for reproduction of the Photographs coming into existence (a) it has been afforded a reasonable opportunity to inspect the Photographs or to have them inspected by experts; (b) it has in fact inspected the Photographs or had them inspected; (c) it has satisfied itself by such inspection as to the nature and quality of the Photographs as to their fitness for their intended purpose; (d) it has not in any way relied upon the judgement of the Supplier as to the suitability and fitness of the Photographs for their intended purposes and uses.

Supply of Photographs in non-digital format

5. Photographs are the Client’s responsibility from the time they are despatched by the Supplier until they have received back by the Supplier.

6. Save where a later date for the return of Photographs is agreed by the Supplier, any Photographs sent on loan must be returned to the Supplier within six weeks from dispatch from the Supplier in the case of duplicate Photographs or one week in the case of designated master copies unless the Client is not happy to comply with the terms and conditions set down herein; in such an event they should return the Photographs immediately. Each Photograph not returned within the agreed period from the date of submission will incur a minimum holding fee of $1.00 per week or part of a week thereafter in the case of duplicate Photographs, and a minimum holding fee of $1.50 per day for designated master copies until the actual date of return.

7. The Client shall ensure that Photographs are returned to the Supplier by hand, registered post or air freight. Photographs shall be packed to the highest standard and afforded all necessary protection whilst in transit. The Client shall include a Confirmation of Use form, a copy of which is enclosed, giving to the Supplier all the required details of use. Photographs must always be returned to the Supplier with their sleeves whether they have been used or not. A minimum charge of $25.00 will be made for damaged or lost sleeves. The total number of Photographs listed here shall be deemed to have been received unless written notice is received by the Supplier within 48 hours of receipt.

8. A minimum loss fee of $650 per Photograph shall be payable by way of liquidated damages to the Supplier by the Client for any Photographs lost or damaged however such loss or damage was occasioned whilst in its possession or in transit. Any loss of damage should immediately be notified by the Client to the Supplier in writing. The payment of a loss or damage fee shall not entitle the Client to any additional rights in the material to which the loss fee relates. If a lost Photograph is subsequently found, it shall be returned to the Supplier immediately. If a lost photograph is returned to the Supplier undamaged the Client shall be credited with an amount equal to the loss fee already paid less the costs incurred as a result of its temporary loss by the Supplier. During the period of the loss, the Photograph will be deemed to have been in the Client’s possession and holding fees in accordance with clause 6 will be charged.

Supply of Photographs in digital format

9. Photographs supplied in digital format do not need to be returned to the Library unless the Client is not happy to comply with the terms and conditions set down herein; in such an event they should contact the Supplier immediately in order to arrange return of the Photographs or any copies of the Photographs.

10. The Client agrees to destroy all Photographs supplied in digital format and any pre-press or pre-production copies of the Photographs within 90 days of the date of receipt of the Photographs. Client acknowledges that such reproduction-quality digital images are the valuable property of the Supplier.

Licence for Use Photographs

11. THE COPYING OR REPRODUCTION BY WHATEVER MEANS OF THE PHOTOGRAPHS IS STRICTLY FORBIDDEN WITHOUT THE SPECIFIC WRITTEN CONSENT OF THE SUPPLIER in particular but without limitation electronic use, storage or transmission of Photographs is forbidden without the express, written permission of the Supplier and is subject to an additional contract. It is the responsibility of the Client to inform the Supplier when and how a photograph is to be used.

12. In the event that the Supplier consents to any reproduction of the Photographs then such consent shall be subject to the terms and conditions set out in the invoice and any specific agreement in respect thereof and the provisions set out in these terms and conditions.

13. The Client acknowledges that any Photograph may become unavailable for the requested use at any time prior to the issue of an invoice.

14. Any rights or permissions granted to the Client shall be non-exclusive reproduction rights for single use only in North America unless the terms of the invoice expressly state otherwise. A single use means a reproduction in one size for one edition of a single publication, published in one language only. Rights granted to reproduce any Photograph do not include the rights to use that Photograph directly or indirectly in any manner in the advertising of that product unless such right is specifically granted on the invoice.

15. The client shall ensure that credit to the supplier is given in relation to every Photographs used and appears thus: the title of the Painting/the name of the artist/the acknowledgement required by the collection and the acknowledgement required by the Bridgeman Art Library International Ltd., London/New York. If the client fails to credit the Photograph as specified by the supplier an additional 50% of the original reproduction fee will be payable. The client shall not use the supplier’s name or similar name in any other manner in connection with any Reproduction.

16. Photographs shall not be loaned, rented, delivered, supplied, sold or otherwise disposed of and no use whatsoever shall be made of them by the Client without prior written consent of the Supplier, nor shall the Photograph be altered or manipulated, added to, or have any part deleted without the prior written consent of the Supplier.

17. Artwork, printed matter, printing plates, digital files and film separations using the Photograph or any part of it shall not be offered by the Client to third parties for re-publication without the prior written consent of the Supplier. Any permission to reproduce that may be granted as referred to in condition 11 is not assignable by the Client to any third party without the prior written consent of the Supplier.

WARRANTIES AND INDEMNITIES

18. Whilst the Supplier has taken all reasonable care to ensure the correct identification of a Painting depicted in any Photograph then save in respect of death or personal injury caused by the Supplier’s negligence no liability is accepted for loss or damage occasioned to the Client or to any third party arising from or in connection with the granting of permission to reproduce or the supply or publication of a Photograph or its captions howsoever caused.

19. THE SUPPLIER DOES NOT MAKE OR GIVE EITHER EXPRESSLY OR IMPLIEDLY ANY WARRANTIES THAT ANY RIGHTS TO REPRODUCE THE PAINTINGS DEPICTED IN THE PHOTOGRAPHS HAVE BEEN GRANTED NOR DOES IT WARRANT THAT NO THIRD PARTIES OWN RIGHTS IN THE PAINTINGS THEREIN DEPICTED. THE COPYRIGHT HOLDER CONCERNED MUST BE APPROACHED AND THEIR PERMISSION MUST BE SOUGHT BY THE CLIENT. IN ADDITION, THE SUPPLIER MAKES NO CLAIM OR WARRANTY WITH REGARD TO THE USE BY THE CLIENT OF NAMES, PEOPLE OR TRADEMARKS DEPICTED IN THE PHOTOGRAPH. IT IS ENTIRELY THE RESPONSIBILITY OF THE CLIENT THAT IT SHOULD NOT USE OR REPRODUCE THE PHOTOGRAPHS IN ANY WAY AS MAY RESULT IN ANY BREACH OR INFRINGEMENT OF THE MORAL RIGHTS OF ANY ARTIST OR HIS SUCCESSOR. IN THE EVENT THAT THE PHOTOGRAPH IS USED BY OR WITH THE AUTHORITY OF THE CLIENT, THEN THE CLIENT SHALL INDEMNIFY THE SUPPLIER AGAINST ANY LOSS, DAMAGE, PROCEEDINGS OR COST WHERE SUCH RIGHTS, RELEASES OR CONSENTS HAVE NOT BEEN OBTAINED. THE SUPPLIER CHARGES A FEE ONLY FOR PROVIDING ACCESS TO THE PHOTOGRAPHS.

LIMITATION OF LIABILITY

20. EXCEPT FOR ANY LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED, THE SUPPLIER SHALL ON NO ACCOUNT BE LIABLE TO THE CLIENT OR ANY OTHER THIRD PARTY CLAIMING THROUGH IT FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATING TO THE USE OF THE PHOTOGRAPHS, WHETHER FRAMED AS A BREACH OF WARRANTY, IN TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE. IN NO EVENT SHALL THE SUPPLIER’S LIABILITY FOR ANY PHOTOGRAPH PROVIDED HEREUNDER EXCEED THE CHARGES AND FEES FOR SUCH PHOTOGRAPH SET OUT IN THESE TERMS AND CONDITIONS OR ANY RELATED AGREEMENT.

Licence Fees

21. It is the responsibility of the Client to be aware of the Supplier’s current rates. Permission to reproduce is conditional and contingent upon payment of the fee to be notified in writing to the Client by the Supplier in the form of an invoice and the permission shall not commence until payment has been made by the Client and any special terms accepted. Any licence granted is also strictly conditional upon full compliance by the Client with all the terms and conditions (including payment of fees or royalties) and any reproduction or use of the Photographs or Reproductions outside the scope of or in breach of the terms of such Licence will be an infringement of copyright and other rights and the Client shall be liable to the Supplier for all damages, costs or expenses incurred by the Supplier in respect thereof.

22. The client shall pay the fee payable for the reproduction licence granted in accordance with these terms to the supplier within 30 days of the date of the invoice. The amount of the invoice may be reduced by 10% if paid within 30 days.

23. The Supplier shall levy a cancellation fee, at a minimum level of 50% of the reproduction fee, in instances where the Client does not finally publish a Photograph for which they earlier submitted a Confirmation of Use form.

24. If any payment due by the Client to the Supplier is not made in accordance with these Terms and Conditions, the Supplier may charge interest on the overdue amount at 2% per annum above the base rate from time to time of Coutts & Co on the outstanding balance from the due date of payment until actual payment.

25.CHARGES AND TAXES The Client shall be solely liable for any state or local sales, use or other taxes of a similar nature that may be due on account of the Client’s use of the Photographs and other services provided under this Agreement.

26. These Terms and Conditions will terminate within 28 days if the Client (a) enters into voluntary or compulsory liquidation; (b) has a receiver appointed; or (c) fails to perform any of its obligations under these Terms and Conditions. In the event of termination, all rights granted under these Terms and Conditions shall immediately revert to the Supplier and any further exploitation of any Reproduction shall constitute an infringement of copyright.

27. The Client must provide complimentary copies of the publication in which the Reproduction appears in the quantity to be specified by the Supplier. When required, the Client will send the complimentary copies direct to the museum, collection or copyright holder as directed by the Supplier.

28. Any publication right (as defined in the Copyright and Related Rights Regulations 1996) arising in respect of any Image from the use by the Client of such Image shall rest with the Library and the Client hereby assigns all such right arising to the Library. The Client undertakes that it shall do all such acts and execute any documents reasonably required by the Library to give effect to this Clause.

29. These Terms and Conditions shall be governed by the laws of England and the parties agreed to submit to the jurisdiction of the English courts.

Any controversy or claim arising out of or relating to these terms or otherwise arising out of any transaction between the Supplier and the Client shall be settled by arbitration in New York City, New York, administered by the American Arbitration Association (the ‘AAA’). The determination reached in such arbitration shall be final and binding on both parties without any right of appeal of further dispute. Judgement upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction on thereof.

30. COLLECTION COSTS: The Client agrees to pay the Supplier any and all costs expenses and reasonable attorney’s fees paid or incurred by the Supplier in enforcing or endeavouring to enforce this agreement.

31. These conditions may not be varied or modified except by a written agreement signed by both the Supplier and the Client. They do not constitute a partnership, agency, relationship or joint venture between the parties.