Terms and Conditions

1. Defintitions and Interpretations

"CRUSH Associates Limited" is the trading name of CRUSH Associates Limited.

"CRUSH Photography & Journalism" is part of CRUSH Associates Limited.

"CRUSH" is part of CRUSH Associates Limited.

"Charges" means the charges specified in the Statement of Work / the Photographer's Hourly Rate multiplied by the number of person-hours spent by the Photographer's personnel performing the Services payable by the Customer to the Photographer;

"Customer" means the customer for Services under an Engagement as specified in the Statement of Work;

"Effective Date" means the date specified as such in the Statement of Work;

"Engagement" means a contract between the Photographer and the Customer for the supply of Services and the delivery of Photographs incorporating these Terms of Business and a Statement of Work, and any amendments to such a contract from time to time;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Hourly Rate" means the Photographer's hourly labour rate as specified in the Statement of Work / notified by the Photographer to the Customer;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and the "intellectual property rights" referred to above include copyright and related rights, moral rights, database rights, business names, trade names, trade marks, service marks, passing off rights and rights in designs);

"Permission" means a permission given by a third party for the performance of the Services and/or the inclusion of a location, object, person, work or other thing in the Photographs;

"Photographer" means CRUSH Associates Limited, a limited company incorporated in England and Wales (registration number 5298022) having its registered office at The White Cottage,  Braceby,  Sleaford,  Lincolnshire,  NG34 0TA;

"Photographs" means the photographic images detailed in the Statement of Work which are the subject of an Engagement, which may include prints, negatives, transparencies and/or digital images;

"Services" means the photographic services supplied by the Photographer to the Customer under an Engagement, details of which are set out in the Statement of Work (or, to the extent that no such details are set out in the Statement of Work, details of which will be agreed between the parties acting reasonably from time to time);

"Statement of Work" means the statement of work document issued by the Photographer to the Customer and signed by or on behalf of each party detailing the scope of the Services and other matters relating to an Engagement;

"Term" means the term of an Engagement.

1. 2 In these Terms of Business, a reference to a statute or statutory provision includes a reference to: (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and (b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of these Terms of Business.

1.4 In these Terms of Business, “persons” include companies, partnerships, limited liability partnerships, unincorporated associations and trusts.

1.5 The ejusdem generis rule is not intended to be used in the interpretation of these Terms of Business; it follows that a general concept or category utilised in these Terms of Business will not be limited by any specific examples or instances utilised in relation to such a concept or category.

2. Engagements

Each Engagement will come into force on its Effective Date and will continue in force until the Services agreed in the Statement of Work have been completed, upon which it will terminate automatically (unless previously terminated in accordance with Clause 12).

3. Services

3.1 The Photographer will supply the Services to the Customer and deliver the Photographs to the Customer in accordance with the terms of each Engagement.

3.2 The Photographer may sub-contract the provision of the Services without the prior written consent of the Customer; providing that if the Photographer does sub-contract the provision of Services, the Photographer will remain liable to the Customer for the performance of the sub-contracted obligations.

3.3 The Photographer may suspend the provision of the Services and/or withhold the Photographs if the Customer fails to pay by the due date any amount due to the Photographer in respect of an Engagement.

4. Customer Obligations

4.1 The Customer will provide to, or procure for, the Photographer any:

(a) co-operation, support and advice;

(b) information and documentation; and

(c) governmental, legal or regulatory licences, consents or permits;

reasonably necessary to enable the Photographer to discharge its obligations under any Engagement.

4.2 The Customer must provide feedback on preparatory composition or design work promptly, and in any event in accordance with any timetable agreed between the parties.

4.3 The Customer will be responsible for obtaining in writing any Permissions reasonably required for the performance of the Services, and will provide to the Photographer copies of those Permissions promptly following receipt of a request to do so.

4.4 The Customer hereby indemnifies and undertakes to keep indemnified the Photographer against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any breach by the Customer of Clause 4.3.

5. No Grant of rights/licence of rights/assignments of rights

Save as expressly provided elsewhere in these Terms of Business or a Statement of Work, the Customer acquires no licence or assignment of any Intellectual Property Rights or other rights in the Photographs.

6. Moral Rights

6.1 The Photographer / The personnel of the Photographer assert their moral rights to be identified as the authors of the Photographs in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

6.2 The Photographer acknowledges that, under Section 85 of the Copyright, Designs and Patents Act 1988, where Photographs have been commissioned by the Customer for private or domestic purposes, the Customer has the rights not to have: (i) copies of the Photographs shown in public, (ii) the Photographs exhibited or shown in public, and (iii) the Photographs communicated to the public.

7. Intellectual Property Rights

7.1 The Photographer warrants that the Photographs will not infringe the [UK] Intellectual Property Rights of any third party.

7.2 Subject to the Customer's compliance with Clause 7.3, the Photographer hereby indemnifies and undertakes to keep indemnified the Customer against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any breach by the Photographer of the warranty in Clause 7.1.

7.3 The Customer will:

(a) upon becoming aware of an actual or potential infringement, notify the Photographer;

(b) provide to the Photographer all reasonable assistance in relation to the infringement;

(c) allow the Photographer the exclusive conduct of all disputes, proceedings, negotiations and settlements related to the infringement; and

(d) not admit liability in connection with the infringement or settle any claim without the prior written consent of the Photographer.

8. Charges and Payment

8.1 The Customer will pay the Charges to the Photographer in accordance with the provisions of this Clause 8.

8.2 The Photographer may issue an invoice for the Charges to the Customer from time to time during the Term.

8.3 The Customer will pay the Charges to the Photographer within 7 days of the date of issue of an invoice issued in accordance with Clause 8.2.

8.4 All amounts stated in the Statement of Work or in relation to an Engagement are stated exclusive of all value-added taxes, which will be added to those amounts and payable by the Customer to the Photographer.

8.5 Charges must be paid by debit or credit card, direct debit, bank transfer or by cheque using such payment details as are notified by the Photographer to the Customer from time to time.

8.6 If the Customer does not pay any amount properly due to the Photographer in connection with any Engagement, the Photographer may:

(a) charge the Customer interest on the overdue amount at the rate of 8% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily until the date of actual payment and be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

9. Warranties

9.1 The Customer warrants to the Photographer that it has the legal right and authority to enter into and perform its obligations required by each Engagement.

9.2 The Photographer warrants to the Customer that:

(a) it has the legal right and authority to enter into and perform its obligations required by each Engagement.

(b) the Services will be performed with reasonable care and skill.

9.3 All of the parties' liabilities and obligations in respect of the subject matter of these Terms of Business are expressly set out in these Terms of Business. To the maximum extent permitted by applicable law, no other terms concerning the Services or Photographs will be implied into any Engagement.

9.4 Without prejudice to the generality of Clause 9.3, the Photographer does not warrant that the Customer will be satisfied with the composition or style of any Photograph, and accordingly the Customer will have no right to reject any Photograph on these grounds.

10. Limitations of Liablity

10.1 Nothing in these Terms of Business will exclude or limit the liability of either party for:

(a) death or personal injury caused by that party's negligence;

(b) fraud or fraudulent misrepresentation on the part of that party; or

(c) any other liability which may not be excluded or limited under applicable law.

10.2 Subject to Clause 10.1 and without prejudice to the express indemnities in these Terms of Business, the Photographer's liability to the Customer under or in connection with these Terms of Business, any Engagement, or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:

(a) the Photographer will not be liable for any:

      (i) loss of profits, income or anticipated savings;

      (ii) loss or corruption of any data, database or software;

      (iii) reputational damage or damage to goodwill;

      (iv) loss of any commercial opportunity; or

      (v) indirect or consequential loss or damage

(b) the Photographer will not be liable for any losses arising out of a Force Majeure Event;

(c) the Photographer's liability in relation to any event or series of related events will not exceed the greater of:

     (i) £100; and

     (ii) the total amount paid or (if greater) payable by the Customer to the Photographer under the relevant Engagement.

10.3 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations required by any Engagement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

11. Terminations

11.1 Either party may terminate an Engagement at any time by giving at least 30 days' written notice to the other party.

11.2 Either party may terminate an Engagement immediately by giving written notice to the other party if the other party:

(a) commits any material breach of any provision of these Terms of Business or the relevant Statement of Work, and:

     (i) the breach is not remediable; or

     (ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or

(b) persistently breaches these Terms of Business and/or the relevant Statement of Work.

11.3 Either party may terminate an Engagement immediately by giving written notice to the other party if:

(a) the other party:

      (i) is dissolved;

      (ii) ceases to conduct all (or substantially all) of its business;

      (iii) is or becomes unable to pay its debts as they fall due;

      (iv) is or becomes insolvent or is declared insolvent; or

      (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party required by the Engagement);

(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

11.4 The Photographer may terminate an Engagement immediately at any time by giving written notice to the Customer if the Customer fails to pay in full and on time any amount due to the Photographer whether due in respect of that Engagement or otherwise.

12. Effects of Termination

12.1 Upon termination of an Engagement all the provisions of these Terms of Business and the Statement of Work will cease to have effect, save that the following provisions of these Terms of Business will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 4.4, 7.2, 7.3, 8.6, 8.7, 10, 13, 14 and 15].

12.2 Termination of an Engagement will not affect either party's accrued liabilities and rights (including accrued rights to be paid) as at the date of termination.

13. General

13.1 No breach of any term of any Engagement will be waived except with the express written consent of the party not in breach.

13.2 If a term of any Engagement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other terms of the Engagement will continue in effect. If any unlawful and/or unenforceable term would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the term will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant term will be deemed to be deleted).

13.3 No Engagement will constitute a partnership, agency relationship or contract of employment between the parties.

13.4 Neither these Terms of Business nor any Statement of Work may be varied except by a written document signed by or on behalf of each of the parties.

13.5 The Photographer may freely assign its rights and obligations under any Engagement without the Customer's consent – providing where the Customer is a consumer that such action does not serve to reduce the guarantees benefiting the Customer under the Engagement. Save as expressly provided in this Clause or elsewhere in these Terms of Business, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in any rights or obligations under any Engagement.

13.6 Each Engagement is entered into for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement relating to any Engagement are not subject to the consent of any third party.

13.7 Subject to Clause 10.1:

(a) these Terms of Business and the relevant Statement of Work will constitute the entire agreement between the parties in relation to an Engagement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and

(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into an Engagement.

13.8 These Terms of Business and each Statement of Work will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with any Engagement.