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Commercial Usage Terms & Conditions

Dolphinman Picture Library (DPL)

All images showcased in this website are protected by the laws of copyright and all rights are reserved. No image may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system without prior written permission of DPL. Any use of an image expressly authorised in writing by DPL is made expressly subject to the DPL Terms and Conditions of Reproduction and Submission.

Provision and Reproduction of Pictures

1) Definitions

In this agreement the following words shall have the following meanings:

a) "Dolphinman Picture Library” ("DPL") is the supplier of the Pictures;

b) "Client" shall be the person or company set out on the consignment note herewith;

c) "Picture" includes a photograph, transparency, black and white print and/or any other graphic work and/or any digital image representation of any of these, which DPL may offer for the purpose of Reproduction;

d) "Reproduction" includes any form of publication (whether or not to an audience), of the whole or part of any Picture, altered or not, whether by printing, photography, slide projection, xerography, artist's reference, artist's illustration, layout, presentation, electronic or mechanical reproduction and/or storage by any other means;

e) "Date for Return" is the date by which Pictures supplied by DPL must be returned to it as specified on the Consignment Note (defined below) or otherwise as extended by notice in writing from DPL. If no date is specified, then the Date for Return shall be four weeks from the date on the Consignment Note or if an invoice is rendered for reproduction rights, 12 weeks from the date of such invoice.
2) Supply of Material

a) Pictures shall be supplied on loan at Client's request and no property or copyright in any Picture shall pass to the Client whether on its submission or on DPLs' grant of Reproduction Rights (defined below) in respect thereof.

b) DPL will endeavour to but cannot guarantee to meet Clients' deadlines for supply of Pictures. In the event of failure to deliver to a deadline DPL does not accept responsibility or liability of any kind.

c) DPLs' "Consignment Note" will list all the Pictures to be used by the Client and shall be presumed to have been received complete and in good condition unless within 2 days of receipt the Client notifies DPL in writing of any discrepancy.

3) Fees

a) A non-refundable service fee of a minimum of Ł10 per high resolution digital image, subject to specific service fee quote on high resolution digital images; to cover administration, is payable to DPL by the Client on each submission and re-submission of Pictures whether or not Reproduction Rights are required by the Client or granted by DPL. A separate fee may at DPL's sole discretion be charged by DPL to cover research time spent by DPL, provided that this will be in accordance with DPL's prior written quote as advised to and agreed with the Client. DPL will deliver Pictures to the Client by the most appropriate safe method which affords proof of delivery and the Client shall pay a separate delivery fee for delivery which may be by courier, express delivery, and any special delivery arrangements requested by it.

b) Costs will be invoiced in and should be paid to DPL in Pounds Sterling, Euros, U.S. Dollars, Canadian Dollars, and Yen. Payment to be made in advance through PayPal at
www.paypal.com.

c) Reproduction Rights to use Pictures are not granted until all fees are paid in full. Any use of Pictures before payment of fees in full constitutes an infringement of rights and a breach of the Agreement.

4) Rights

a) Pictures belong to and are legally controlled by DPL. They are the Client's responsibility from the time they are received by the Client until they are returned to DPL. Client is urged to take out insurance to cover the total value of the Pictures delivered. Client is advised to ensure that all Pictures supplied by DPL on loan are properly insured against loss or damage of any kind, naming DPL as an additional insured, and upon request by DPL shall provide a copy of the applicable insurance policy to DPL.

b) Until the DPL reproduction fee is paid in full, neither party is committed to grant or acquire any Reproduction Rights in the applicable Picture(s). After a fee has been agreed and is paid in full DPL is contractually obliged to grant Reproduction Rights to the Client as specified by the invoice and the Client is contractually obliged to acquire the Reproduction Rights. If after payment, the Client requests cancellation of the Reproduction Rights, then DPL may in its sole discretion cancel the order, subject to the Client paying a cancellation fee to be determined at the sole discretion of DPL.

c) The Client may not exercise any of the Reproduction Rights in any Picture until all applicable fees have been fully paid and the monies have been cleared through DPL's bank account. Any reproduction by the Client before payment of the invoice constitutes an infringement of rights and a breach of this Agreement.

d) Upon grant of Reproduction Rights the Client warrants that the Picture(s) shall only be used as detailed in the DPL invoice. No other use is permitted except with prior written permission from DPL and negotiation of additional fees.

e) DPL may at any time inspect any records accounts and books relating to the rights granted hereunder to ensure that the Pictures licensed by this Agreement are being used only in accordance with the Reproduction Rights granted to the Client. If any Picture is exploited without authorization from DPL or Reproduction Rights licensed under this Agreement are exceeded in any way, DPL reserves the right to charge the applicable fees for such use as informed by DPL to the Client in writing plus a penalty fee, at a level determined by DPL at its sole discretion.

5) Reproduction Rights

"Reproduction Rights" (if and when granted) unless otherwise agreed in writing are as follows:

a) subject to these Terms and Conditions whether or not they are signed by the Client and any Terms and Conditions set out in the applicable Consignment Note and licence noted on the DPL invoice;

b) non-exclusive Reproduction Rights limited solely to the use, period of time and territory specified on the DPL applicable invoice for use in one medium, and subject to any other rights restrictions of which DPL shall advise Client on the applicable DPL invoice;

c) for a single use in a single size with text (if any) in one language only. Rights granted to reproduce a Picture on a product do not include the right to use that Picture directly or indirectly in any manner in the advertising of that product unless such right is specifically granted;

d) not granted exclusively to the Client except when specified on the applicable invoice;

e) personal to the Client and may not be assigned or licensed nor may any Picture submitted to the Client be loaned or transferred to any third party save for the purpose of the exercise by the Client of such Reproduction Rights;

f) granted to the Client by way of licence and no partial or other assignment of copyright shall be implied;

g) Pictures shall not be copied, loaned out or otherwise disposed of by the Client and no use whatsoever shall be made of them by the Client without prior written consent of DPL, nor shall any Pictures be altered or manipulated, added to, or have any part deleted without the prior written consent of DPL;

h) Unless otherwise agreed in writing, if any Picture reproduced by the Client omits either the copyright notice/ credit line "© www.dolphinman.co.uk “, then the reproduction fee payable by the Client shall be 20% more than the specified on the invoice;

i) 2 proofs of any publication or the relevant pages thereof containing any Pictures supplied by DPL are to be furnished to DPL by the Client free of charge within 2 weeks of publication. In other media, evidence of use must be made available to DPL by the Client if requested.

6) Date for Return

The Client must return every Picture to DPL by its Date for Return by any safe method and which affords proof of delivery. All necessary packaging and protection must be given to every Picture in transit. Client must enclose the DPL return slip with the Pictures, detailing and totalling the returned Pictures.

7) Holding Fees

Unless otherwise agreed with DPL, each Picture may be held by the Client without incurring Holding Fees (defined below) until its Date for Return. The Client may only retain any Picture after the period agreed with DPL, following requesting from DPL an extension and DPL's agreement thereto, in which event the Client may retain Pictures as agreed with DPL for an extended period at no charge, unless otherwise required by DPL and informed to the Client. Unless an extension is agreed as aforesaid, the Client shall be liable to pay a holding fee of Ł3.50 per Picture per week or part thereof ("Holding Fee") after the Date of Return pending its safe receipt by DPL. Payment of the Holding Fee does not per se, entitle the Client to retain the Picture after the Date for Return.

8) Digital Images

a) Client acknowledges that Pictures are the valuable property of DPL as are any digital images created from the Pictures ("Digital Images").

b) Client may not create, store or transmit Digital Images without the express prior written permission of DPL except so far as is incidentally and wholly necessary to the process of producing items licensed by DPL. If permission is granted the following conditions apply:

(i) each Digital Image created by Client shall be recorded and labelled with the Picture reference number used by DPL and the copyright credit information, as an integral part of the Picture file, and held on an electronic database under the Client's sole possession and control;

(ii) Unless otherwise agreed, any Digital Image created by Client must not be greater in size than 640 x 480 pixels, 72ppi. Any use of the Digital Image shall be in a format designed so that it will not be possible to alter, manipulate or adapt any Digital Image in any way during the normal course of using the product;

(iii) Client agrees to destroy all Digital Images including any pre-press or pre-production copies of the Pictures and any copies or records of the applicable Pictures held on a database within 90 days of the date of receipt of the Pictures or completion of the maximum production run, or expiry of the licence term, which is later.

9) Responsibility for Pictures

a) Risk in and responsibility for each Picture/Digital image passes to the Client from the time of its delivery to the Client until its safe return to DPL. The Client shall immediately inform DPL of any known loss or misuse of, or damage to the Pictures while in the Client's possession or that of any third party. If a Picture is not returned to DPL within 12 weeks of the Date of Return then DPL may in its sole discretion presume it to be lost.

b) The Client shall be liable to pay DPL compensation in respect of any Picture/Digital image lost, or in DPLs' opinion misused. Such compensation shall be Ł200 for each original Picture/Digital Image lost, damaged or misused. Payment of compensation by a Client to DPL does not give rise to any rights in any Picture for the Client.

c) A Picture subsequently found following loss by a Client and compensation paid to DPL as aforesaid in b. must be returned to DPL immediately. If the Picture is undamaged, then the Client will be credited with the compensation paid by it, less a Holding Fee from the date the compensation is claimed to the date the Picture is returned to DPL, such credit to be no less than 20% of the compensation paid by the Client to DPL.

d) Any Picture returned to DPL with data missing or defaced shall incur a charge of Ł20 to the Client.

10) Indemnity

a) The Client is deemed responsible for all Pictures in its possession and for all third party clearances and for any and all fees arising from unauthorised use of the Pictures.

b) The Client fully indemnifies DPL in respect of all loss, claims, actions, proceedings, costs or damages incurred or awarded and compensation agreed in consequence of any breach, non-observance or non-performance by the Client of all or any of the obligations of the Client herein contained.

c) While DPL takes all reasonable care in the performance of this Agreement generally, DPL shall not be liable for any loss or damage suffered by the Client or by any third party arising from any defect in any Picture or its caption or in any way from its reproduction.

d) Damages for any breach by DPL of this Agreement other than as specified in c) above, shall be expressly limited to the fees paid to DPL by the Client prior to the date of any breach hereof.

11) Warranty

a) DPL warrants that it is the copyright owner of the pictures.

b) Unless specified in writing, no warranty is given by DPL as to the existence or validity of model or other releases or waivers in respect of any Pictures and DPL shall not be liable in respect of any such releases or waivers or for any defect in any existing releases or waivers. Save as expressly provided herein, DPL gives no rights or warranties with regard to the use of names, people, trademarks, or copyright in respect of any copyright works depicted in the Pictures and the Client must satisfy him/herself that all necessary rights and/or consents as may be required for reproduction are obtained. The Client shall indemnify DPL against any loss, damage, proceedings or costs suffered by DPL from any reproduction of the Picture by the Client without effective releases, rights and/or consents.

c) DPL reserves the right not to grant rights in any Pictures to any party.

d) DPL gives no warranty regarding the accuracy of descriptions of the Pictures and accepts no liability in the event of such descriptions being inaccurate.

12) Termination

a) DPL shall be entitled by written notice to the Client to terminate forthwith this Agreement and any of the Client's rights hereunder if:

i) DPL's invoice is not paid in full, or

ii) the Client is in breach of any material term of this Agreement which is either incapable of remedy or if so capable is not remedied within 21 days of the Client receiving notice from DPL to remedy any such breach; or

iii) a receiver has been appointed over all or a substantial part of the assets of the Client and has not been discharged within 30 days after such appointment; or

iv) any distress execution and/or other legal processes shall levied or enforced against all or a substantial part of the assets of the Client; or

v) a resolution is passed or an order is made for the winding up of the Client (save for the purpose of and followed by a voluntary reconstruction or amalgamation); or

vi) the Client convenes a meeting of its creditors or makes any arrangement or composition with or any assignment for the benefit of its creditors; or

vii) the Client becomes bankrupt; or

viii) a petition for an administration order or winding up order is presented to the court; or

ix) Client becomes or is deemed unable to pay its debts within the meaning of the applicable insolvency legislation.

b) DPL may terminate the Agreement with immediate effect upon written notice to Client if DPL is or reasonably believes that it will become subject to any material costs, including legal costs, damages, loss and/or liability howsoever arising as a result of or in connection with the use by the Client of the Picture(s).

13) Upon Termination

Upon termination under any of the above relevant clauses hereof and without prejudice to any of DPL's other rights (including damages) hereunder:

a) all sums owing under this Agreement to DPL by the Client shall automatically become immediately due and payable;

b) all Reproduction Rights and other rights granted hereunder shall automatically terminate and revert to DPL and any further exploitation of any Picture by the Client shall constitute an infringement of copyright;

c) the Client shall immediately return all Pictures to an address specified by DPL.
Client also agrees to destroy all Digital Images including any pre-press or pre-production copies of the Pictures and any copies or records of the applicable Pictures held on a database.

14 General

a) If a Client uses any Picture, then the Client is deemed to have received and accepted these Terms and Conditions, whether or not the Client has signed them as provided below.

b) These Terms and Conditions replace and supersede all previous arrangements and agreements between DPL and Client either written or oral with respect to the subject matter hereof and constitute the entire arrangement between us. DPL's catalogue, or any other advertising material on DPL's web site does not form part of this Agreement.

c) The Agreement may not be assigned by the Client without DPL's prior written consent.

d) Variation of any term or conditions set out herein shall be invalid unless agreed in writing by both parties.

e) No waiver express or implied by one party hereto of a breach by the other party of any of the provisions of the Agreement shall operate as a waiver of any preceding or succeeding breach of the same or any other provision of the Agreement. If any one or more of the provisions contained in the Agreement shall be invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

f) Save as regards the DPL, and otherwise as expressly provided in the Agreement, the parties do not intend to confer any benefit on a third party and do not intend that any third party should have any right to enforce the Agreement. Without limiting the foregoing, a person not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999, or otherwise to enforce any rights or remedies available to a third party which exist or are available under that Act or otherwise.

g) If both parties hereto agree, a dispute between the parties arising out of or in relation to this Agreement may be referred by either party, first to the managing director of DPL and the Client for resolution. If any such dispute cannot be resolved as envisaged hereunder within a maximum of 14 days from the date of such referral. Otherwise any such dispute aforesaid shall be resolved under the jurisdiction of the Supreme Courts of Judicature of England and Wales.

h) This agreement shall be subject to and construed according to English law and the parties agree to accept the exclusive jurisdiction of the Courts of England.
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