Terms of Delivery
1. Use of Images: The accompanying images are copyrighted and are protected by the intellectual property laws of the United Sates and the Berne Convention. You may not use these images in any manner whatsoever until after you paid our invoice. This means that the images may not be copied, scanned, televised, transmitted, electronically store, or used in layouts, sketches, Photostats, mock-ups etc. until after you pay our invoice. Projection of images is specifically prohibited and you are not granted derivative uses of any image unless indicated on the invoice. Removal of an image from its mount without our prior permission for any usage, including but not limited to comp, layout or presentation, is a copyright violation. Our invoice will set forth the specific rights granted and other conditions of use. Only after you pay our invoice may you use an image, and then only in accordance with the invoice terms.
2. Quantity of images: Unless Charles Mann Photography receives a written claim within five (5) days of your receipt of this contract you agree that: (i) the itemization and count of the number of each image sent you is correct; and (ii) the images were received in perfect condition.
3. Review Period: You may hold and examine the images for the purposes of selecting those images you will use for the period of time that is specified on the front of the delivery contract. NOTE THIS IS NOT A BAILMENT. After the initial review period, unless the review period is extended in writing, you will be charged a HOLDING FEE of $1 per day per image until their actual receipt by Charles Mann Photography. Holding fees will accrue for nine (9) months from the thirtieth (30) day after the date of this Delivery Contract after which non-returned images shall be deemed to be lost and you will be billed for holding fees accrued to that date and lost photo fees in accordance with the Liquidated Damages provisions below.
4. Responsibility for Loss or Damage: The images were inspected prior to shipment, their quantity verified, and were dispatched in perfect condition. By retaining the images you accept all responsibility for loss of or damage to the images while they are in your possession or in transit, from the time you or your representative, agent or messenger takes possession of the images until their safe undamaged receipt by us. You also assume full liability for your employees, agents, assigns, couriers, messengers, freelance-researchers, researchers, clients and printers for any loss or damage to the images. We highly recommend you return the images by bonded messenger or registered mail-return receipt requested, fully insured, adequately packaged and obtain a receipt proving redelivery to Charles Mann Photography.
5. Liquidated Damages: We both agree it is difficult to determine in advance the amount of monetary damage due to the loss or damage of an original transparency or negative (a Lost or Damaged Image). Accordingly we both agree that the establishment of a reasonable liquidated value for any Lost or Damaged Image is in both of our interests. We both accept the sum of One Thousand Five Hundred Dollars ($1,500.00) as the liquidated value of a Lost or Damaged Image. The liquidated value for a duplicate transparency is agreed to be Fifty Dollars ($50.00). Charles Mann Photography agrees to deliver the images to you only upon your express agreement to the terms in this paragraph. If you do not accept this liquidated damage provision please contact us immediately regarding the return of our images.
6. Copyright Protection: Each reproduction of an image must bear a credit line: © Charles Mann Photography. You agree to provide statutory copyright protection of the image by timely registering the work you created or the work in which the image appears, and such copyright shall be immediately assigned to Charles Mann Photography upon request and without charge.
7. Releases, Permissions and Sensitive Subject Usage: Unless our invoice indicates an image has a model release, no such release exists. Charles Mann Photography gives no rights or warranties with respect to the use of names, trademarks, logos, registered or copyrighted designs or works of art depicted in any image, and you must satisfy yourself that all necessary rights, consents or permissions as may be required for reproduction are secured. Under all circumstances, our liability is strictly limited to the invoice price for the use of the image involved. You agree not to use any image in a defamatory manner or context, either by changing it or by any accompanying text. You agree to hold Charles Mann Photography harmless from any and all claims and expenses arising from an image’s use. If you utilize an image prior to paying our invoice, we are relieved of any claim concerning such image’s use or publication since it was published without permission. Advance written permission is required for use of images for sensitive subjects including but not limited to contraception, matters of a sexual nature, substance abuse, domestic abuse, alcohol, tobacco, AIDS, cancer and other serious physical or mental ailments. Charles Mann Photography reserves the right not to permit reproduction of an image for any reason whatsoever.
8. Unauthorized Use: Charles Mann Photography will calculate a usage fee for images relying in good faith on the information you provide and will issue an invoice granting reproduction rights and detailing the usage granted. Since it is difficult to determine damages resulting from unauthorized usage, in the event you utilize an image other than for the usage indicated on our invoice, including but not limited to the number of uses, the publications utilized, or the size of the reproduction, we agree to forego our right to sue you for copyright infringement and you agree to pay, as liquidated damages, a sum equal to four (4) times the normal price we would have charged for such unauthorized use within ten (10) days of our billing such fee. If you fail to timely make such payment, this liquidated damage provision shall be void and we shall have the right to sue for copyright infringement, for which we will not accept less than ten (10) times the normal license fee plus attorney’s fees and all associated costs.
9. Arbitration: A material part of this Contract is this agreement to arbitrate any disputes. Any and all disputes relating to this Contract, with the exception of copyright, including its validity, interpretation, performance, breach or other matter shall be settled by arbitration in Maryland pursuant to the rules of the American Arbitration Association. Judgment upon any award rendered may be entered in the highest court having jurisdiction. The Laws of the State of Maryland shall govern the interpretation of this Contract. You agree the arbitrators have full authority to award costs of the arbitration including legal fees, plus legal interest on any award.
10. Legal Costs and Jurisdiction: In the event that either a court of competent jurisdiction directs us to go to court, or the matter involves copyright, you agree to fully reimburse Charles Mann Photography for its reasonable legal fees and disbursements if Charles Mann Photography is successful in the suit. We both designate the U.S. District Court for the District of Maryland as the jurisdiction for Federal suits and Cecil County Court for State suits.
11. No waiver, Complete Agreement: The terms set forth in our
Delivery Contract and invoice represents our entire agreement concerning the
delivery of images to you, your review and usage thereof. All prior
understandings or representations, whether oral or written, based on “industry
custom” or past dealings, are hereby merged in this Contract. No terms or
conditions may be added unless made in writing and signed by both of us. No
action of ours, other than an express written waiver, may be construed as a
waiver of any part of this Contract, and no employee is authorized to waive it
orally. In the event we waive any specific part of this Contract, it does not
mean we waive any other part.
12. U.C.C.: The above terms are governed by Article 2 of the
Uniform Commercial Code.
NOTE: This Delivery Contract does not grant you any rights to use the images.
Once you have made your final selection(s) and we have negotiated a usage
license fee, Charles Mann Photography will issue you an invoice, setting forth
the terms and conditions regarding usage. All invoices must be paid prior to any
usage.