JAMES ELLIOTT - TERMS OF BUSINESS

GENERAL CONDITIONS OF SALE IN CONNECTION WITH
THE SALE OF, OR LICENSING RIGHTS TO, WORK(S) OF ART



1. DEFINITIONS

"The Seller" means James Elliott, the artist photographer of London NW8.

"The Purchaser" means any person, partnership, company or other party to whom, the Seller may agree to sell a work of Art or license rights thereto, in accordance with the Seller’s standard conditions of sale.

"Work(s) of Art" means any photograph(s), computer generated image(s), electronic painting(s), ink jet print(s), digital image(s), computer processed photograph(s) or other image(s) created by the Seller.

2. GENERAL

2.1. All orders are accepted and all Works of Art are supplied subject to the following express terms and conditions (the Seller’s standard conditions of sale) and save to the extent that the exclusion or restriction of liability may be prohibited by statute all other conditions, warranties and representations, expressed or implied and statutory or otherwise, except as to title, are hereby excluded. Any order placed by a Purchaser shall constitute an offer to contract upon these express terms and conditions and no addition thereto or variation therefrom whether contained in the Purchaser’s order or otherwise shall apply unless expressly agreed in writing by the Seller.

2.2. All fees and costs payable to any party in connection with the delivery, packaging and freight of the Work(s) of Art shall be the responsibility of the Purchaser.

3. INSURANCE

3.1. The Purchaser shall be responsible for all insurance costs related to the work of art once it leaves the Seller including during transit when unaccompanied by the seller. During a credit agreement, it is the responsibility of the Purchaser to insure the Work(s) of Art.

4. ORDERS

4.1. All orders are subject to written acceptance by the Seller. Any prior confirmation by the Seller by facsimile, e mail or telephone shall be deemed to be provisional only.

4.2. The Purchaser agrees to send to the Seller a written order in confirmation of any telephoned order duly marked with any confirmation reference given by the Seller, otherwise the Seller cannot accept liability for any duplication or delivery that may occur.

4.3 Cancellation or amendments of orders are subject to a charge, as stated in Clause 7.

5. PRICES AND PAYMENT

5.1. All quoted or listed prices are exclusive of any applicable taxes or duties.

5.2. Payment shall be made in full by the Purchaser to the Seller prior to the transfer of the Work(s) of Art.

5.3. Payment due for licenses to reproduce the Work(s) of Art in the media, including but not limited to, magazines, newspapers, books, television, video, the cinema and the internet, shall be settled in full on publication.
5.4. Agents and dealers receiving payments on behalf of the Seller must forward such payments less any commission due within 30 days of receipt.
5.5. Any offer, by means of price quoted by the Seller to a prospective Buyer, whether verbally, in writing, or any other means, shall automatically expire, if the buyer does not accept the offer and make a payment.

6. PASSING OF PROPERTY

6.1. Property in the Work(s) of Art shall remain with the Seller until payment is received in full and no legal transfer of property shall be effected until such payment has been received in full by the seller. Where payments are made buy installments over time, property in the work of art shall remain with the Seller until all payments are received in full, regardless of whomsoever is in possession of the Work(s) of Art. Should the buyer default on payment, the seller has the right to recover the work(s) of art and any payments already made shall be treated as a rental charge for the work(s) of art.

7. CUSTOMER’S DEFAULT AND CANCELLATIONS

7.1 The Seller reserves the right, without prejudice, to cancel or suspend trading with the Purchaser, including orders in progress and to demand immediate settlement in full of all outstanding invoices.

7.2. Requests by a Purchaser for cancellation or amendment of any order or for the rescheduling of acquisition will only be considered by the Seller if made in writing and shall be subject to the written acceptance of the Seller or if cancelled or rescheduled at the request of the Purchaser, then the Purchaser shall indemnify the Seller against all loss costs, damages, charges and expenses arising out of the order and the cancellation, amendment or rescheduling thereof to be calculated at 10% of the value of the order.

8. EXCLUSIONS

8.1. No condition warranty term or representation is expressed and none shall be implied in fact by law or by custom including any implied condition or warranty against any deterioration or change of colour in the Work(s) of Art unless such deterioration can be proved to be directly attributable to negligence on the part of the Seller. If such negligence on the part of the Seller is proven, the full extent of liability on the part of the Seller shall be to replace the Work(s) of Art with one of a similar value and such valuation shall be at the sole discretion of the Seller.

8.2 The Seller shall have no liability whatsoever for any deterioration caused by inherent limitations in the manufacture of materials used to create the Work(s) of Art.

8.3. The Seller shall not have any liability whatsoever to the Purchaser or to any third party under any circumstances for special indirect consequential incidental or exemplary damages or losses or lost profits whether based on breach or failure of warranty, breach of contract, misrepresentation, negligence, strict liability, tort or on any other basis, whether foreseeable or unforeseeable, even if it has been advised of the possibility of such damages, the maximum aggregate liability of the Seller shall be limited in all events to the amount received by the Seller from the Purchaser with respect to the specific item upon which the claim of liability is made.

8.4. The limitations, exclusions and disclaimers set out in this section will not apply only if and to the extent that a court of competent jurisdiction requires liability under applicable law beyond and despite these limitations exclusions and disclaimers


9. FORCE MAJEURE

9.1. The Seller shall not be liable for the cancellation by him of any order if the Seller is prevented or delayed whether directly or indirectly by any cause whatsoever beyond the reasonable control of the Seller whether such cause existed or was foreseeable at the date of acceptance of the Purchaser’s order by the Seller or not and without prejudice to the generality of the foregoing any cause shall be deemed to prevent hinder or delay the Seller if the Seller is thereby prevented, hindered or delayed from fulfilling other commitments whether to the Purchaser or to third parties.

10. SEVERABILITY

10.1. If and to the extent that any provision or any part of the provision of the Seller’s standard conditions of sale is illegal, void or unenforceable for any reason, then such provision or part thereof (as the case may be) shall be deemed to be severable from the remaining provision or parts of the relevant provision (as the case may be) all of which remaining provisions shall remain in full force and effect.

11. CREDIT AGREEMENTS

11.1. The Seller may at his sole discretion allow payment by credit terms for the Work(s) of Art.

11.2. Where any due payment remains unpaid for more than 30 days the Seller may charge interest on the entire outstanding balance at a flat rate of 1.5% per month until all arrears and interest due are cleared.

11.3. Should the Purchaser become more than 90 days in arrears with payments, the Seller shall have the right to terminate the agreement and to repossess the Work(s) of Art. Any monies paid at the point of termination by the Seller shall be deemed to be a rental payment for the Work(s) of Art and no refunds shall be made.

12. DEPOSITS AND COLLECTION

12.1. The Seller may at his sole discretion allow the Work(s) of Art to be reserved for or transferred to, the Purchaser on receipt of a Deposit. The deposit shall be not less than 25% of the price of the Work(s) of Art.

12.2 Unless otherwise agreed in writing full payment is due within 30 days of the agreed sale.

12.3. The Seller may charge interest on the any outstanding balance at a flat rate of 1.5% per month until all arrears and interest due are cleared.

12.4 Should the Work(s) of Art not be collected and paid for in full within 60 days from the date of the agreed sale, the Seller may at his sole discretion cancel the agreement without notice and/or withdraw any offer to sell at a previously agreed price.

12.5 Deposits are not refundable.

12.6 Where a deposit is made with ensuing payments made in installments (e.g. by direct debit or post dated cheques), such payments shall be considered a rental charge, until all payments are received in full. Property in the work(s) of art does not pass until all payments are received in full.


13. WAIVER

13.1. The waiver by the Seller or any breach of any term hereunder shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.

14. ASSIGNMENT

14.1. The Purchaser agrees not to assign or transfer this Agreement or any of its rights herein without the prior written consent of the Seller.

15. COPYRIGHT AND LICENSING

15.1. Copyright in the Work(s) of Art shall remain with the Seller UNDER ALL CIRCUMSTANCES. Agents or other intermediaries do NOT have any authority whatsoever to transfer copyright.

15.2 Licenses to reproduce Work(s) of Art in the media, inter alia, magazines, newspapers, books, television, video, the cinema and the internet must be obtained from the Seller or his agents in writing and any such licenses shall be deemed to be temporary, once-only, non-exclusive rights for one specific publication in one specific country. Any variation of this term must be specifically agreed in writing. The granting of usage rights shall not infer any subsequent rights whatsoever to reproduce the Work(s) of Art. Licenses to reproduce the Work(s) of Art in perpetuity are not granted. The Seller reserves the right to withdraw or extend licenses at his sole discretion.

15.3 Licenses to reproduce the Work(s) of Art as original art or art editions, including but not limited to, colour photographs, black and white photographs, ink-jet or giclée prints, traditional lithographs, serigraphs or silk-screens, dye transfer prints or other original art or editions, are not granted without a written and signed letter of authority from the Seller. Agents and intermediaries have no rights whatsoever to assign such rights.

15.4 All Work(s) of Art licensed for reproduction shall be credited with the Seller's name and accompanied by the appropriate copyright symbol, thus © JAMES ELLIOTT.

15.5 Only specific license(s) are granted as defined in 15.2 Any additional license granted to reproduce the Work(s) of Art, for the purpose of promoting or marketing the specific product defined in the license, inter alia, books, videos, exhibitions and websites of or about the Seller, are subject to reasonable usage and such additional license shall (also) be deemed to be temporary. The Seller shall be entitled to compensation for any unreasonable usage. Unreasonable usage includes, but is not limited to, magazine spreads of more than one page, national advertising, posters, calendars, tv commercials, any image used for a period of time exceeding three months, use on a magazine, book, video or other cover, billboards, any form of photographic print, ink jet or other art medium and any usage where the Seller would normally expect compensation, unless such usage is specifically agreed in writing, in advance. The definition of unreasonable usage shall be at the sole discretion of the Seller. The Seller reserves the right to withdraw or extend licenses granted at his sole discretion.

15.6 Any license granted to reproduce or display Work(s) of Art on the internet shall be deemed temporary and rights and may be withdrawn at any time by the Seller. The maximum period allowed for display shall be 3 years and the Seller reserves the right to withdraw or extend licenses granted at his sole discretion. Work(s) of Art must be accompanied by the words "Pictures licensed from James Elliott" and accompanied by the appropriate copyright symbol, thus © JAMES ELLIOTT.

15.7 Where Work(s) of Art are granted a license for use on the Internet in exchange for promotion, or link purposes, the Work(s) of Art should be accompanied by the words, "Picture(s) courtesy James Elliott". Such rights are temporary and the Seller reserves the right to continue, withdraw or extend licenses granted at his sole discretion. The maximum period allowed for display shall be 3 years unless an extension is requested and agreed

15.8 The purchaser of signed, limited edition photographic Work(s) of Art from the Seller is not granted any rights whatsoever to reproduce the Work(s) of Art. This term applies to originals and editions of all sizes, including unique one-offs.

15.9 Where Work(s) of Art are granted a license for use on mobile telephones such rights are temporary and the Seller reserves the right to continue, withdraw or extend licenses granted at his sole discretion. The maximum period allowed for display without renewal shall be 2 years unless an extension is requested and agreed.

15.10 Where Work(s) of Art are granted a license for use in advertising products in media such as, inter alia, magazines, billboards, posters, television, below the line, showcards, packaging, the Internet, etc, such rights must be specifically agreed in a contract of agreement, signed by both parties, which specifically details usage rights and payment(s). No rights other than those stated in said contract shall be implied.

15.11 Where Work(s) of Art are granted a license for use on television such rights are temporary, once only rights and the Seller reserves the right to continue, withdraw or extend licenses granted at his sole discretion.


16. VALUATIONS

16.1. The Seller may provide at his sole discretion a valuation for Work(s) of Art, based on track record and/or sales prices of similar Work(s) of Art. Such valuations are given for insurance and/or guidance purposes only. Valuations are not in any way legally binding or contractual.

17. CONTRACT TERMS

17.1 All contracts originated by the Purchaser shall be subject to the terms of business of the Seller in force at the time of sale. The time of sale shall be deemed to be the date at which price and payment terms are initially agreed.
17.2 Any conflict with the terms of business of the Seller caused by any contract term(s) originated by the Purchaser, shall render the Purchaser's conflicting term(s) void.
17.3 Any exception(s) to the Sellers terms of business must be defined and agreed in a signed letter from the Seller.
18. MODIFICATION OF TERMS

18.1. The Seller reserves the right to modify these terms without notice.

19. ORIGINALS

19.1. The artist creates a stated number originals from each work of art. Between one and ten. These are termed originals - a term borrowed from painting and sculpture where less than 12 copies are referred to as 'originals' rather than editions. This is a unique world
issue of originals. Individual pieces can vary, inter alia, in size, print type and even in some instances, pictures details. They are not necessarily identical images, although they may in some instances be so. Sizes quoted are nominal and refer to the paper size used. Originals are normally smaller after printing and trimming.

20. LONGEVITY

20.1. The Seller may quote an estimated period of longevity for the Work(s) of Art. Such estimates are garnered from the worlds leading authorities and given in good faith, for guidance purposes only. Such estimates shall in no circumstances constitute a guarantee, or part of the contract. Figures quoted refer to the dyes or pigments used to create the image. No guarantee whatsoever shall be given in regard to substrate, mounting materials, glazing, framing or any other materials used.

21. JURISDICTION

21.1. The agreement shall be governed by and construed in accordance with English Law and the Courts of England shall have jurisdiction to hear all disputes arising in connection with the agreement.