Terms & Conditions - I Heart Studios

These terms and conditions apply to the photographic and other services to be provided by I HEART STUDIOS NETHERLANDS B.V incorporated and registered in the Netherlands with company number 66879094 whose principal place of business is at Joop Geesinkweg 222, 1114 AB Amsterdam, The Netherlands (“I Heart Studios”). By making any booking with us, you agree to be bound by these terms.

A booking is an offer by you to purchase the photographic and/or other services specified in any written quote we have provided (“Quote”) (as may be amended in writing) or as otherwise agreed by the parties in writing (the “Services ”). We may issue a confirming booking form (“Booking Form”) in relation to each booking, which shall (if issued) constitute our acceptance of your booking and, together with these Terms, shall constitute a binding contract between us in relation to the specified booking (the “Contract ”). If no Booking Form is issued, the Contract shall be the Services and price as confirmed in writing by us to you together with these Terms and we shall be deemed to have accepted your offer on issuing such written confirmation to you. We are not obliged to accept any booking. Quotes do not constitute an offer and are only valid for one month from the date of issue. These Terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1. I Heart Studio’s obligations

1.1 In connection with the provision of the Services, I Heart Studios shall (as applicable)Heart Studios Group Limited

1.1.1. provide the Services from the Studio, and/or such other locations as set out in the Schedule of Work (or otherwise agreed in writing) using reasonable care and skill;
1.1.2. meet The Client’s timescales in the Schedule of Work, time being of essence in regard to the date of each photoshoot and any other delivery dates the Services must be provided;
1.1.3. provide such photographers, set stylists, retouchers and such other personnel as are required to provide the Services, save for those services which The Client is to provide as set out in the Schedule of Work;
1.1.4. use reasonable endeavours to provide continuity of staff at the Studio for Shoots in order to assist with consistency of image and quality;
1.1.5. check the Stock against the Inventory after each Shoot and report any discrepancies or damage to any Stock in accordance with the timescales in the Schedule of Work;
1.1.6. re-pack the Stock following each Shoot in accordance with the Schedule of Work;store the Stock at the Studio, or at such other location as I Heart Studios shall determine;
1.1.7. insure the Stock whilst at the Studio against loss of Stock, fire, theft and accidental damage;
1.1.8. ensure the Image System is of satisfactory quality, fit for purpose and in accordance with standards in industry;
1.1.9. grant The Client access to the Image System for the purposes of viewing and downloading the Images in accordance with Schedule 5 and the terms of this Agreement;
1.1.10. deliver the Images following each Shoot via Image System in accordance with the Schedule of Work, with time being of the essence;
1.1.11. use its best endeavours to ensure the Images are consistent with any style guide or approved test shots agreed between the parties in relation to the Images;
1.1.12. in exceptional circumstances and only where expressly specified in the Statement of Work or otherwise agreed in writing, book models for the Shoot. Any such agreement to book models is conditional upon The Client undertaking that the contract to provide the models shall be between The Client and the model/model agency and that I Heart Studios shall only make such booking as agent for The Client and not as a principal in law. In these circumstances, I Heart Studios shall pay the fees for the model(s) on booking (on behalf of The Client) and shall invoice The Client all such fees together with an administration fee specified in the Statement of Work for each model booking on a monthly basis unless stated otherwise in the Statement of Work or otherwise agreed in writing. Please note that it is standard practice for The Client to book and pay for models direct; and
1.1.13. when providing any Services at the Studio or any other premises agreed by the Parties, observe, and ensure that the I Heart Studio’s team observe, all health and safety rules and regulations and inform The Client of all health and safety rules and regulations and any other reasonable security requirements that apply at the premises and that have been communicated to I Heart Studios.
1.1.14. notify The Client as soon as it becomes aware of any problems, delays or health and safety hazards which arise in relation to the Services; and
1.1.15. obtain and at all times maintain, all necessary licences and consents and comply with all relevant laws and regulations in relation to the Services.
1.1.16. I Heart Studios acknowledges and agrees that if it considers that The Client is not, or may not, be complying with any of The Client’s obligations in relation to the Services, it shall only be entitled to rely on this as relieving the Supplier’s performance under this agreement to the extent that it materially restricts or precludes performance of the Services by the Supplier and if the Supplier, promptly after the actual or potential non-compliance has come to its attention, has notified details to The Client in writing. Clarification. In the event of a shortfall against the 90% target, I Heart Studios would retrospectively charge an additional 10% to the cost of all work undertaken to date.

2. The Client’s obligations

2.1 The Client shall:

2.1.1. deliver the Inventory and Stock for each Shoot to the Studio in accordance with the timescales in the Schedule of Work;
2.1.2. collect the Stock from the Studio in accordance with the timescales in the Schedule of Work (and if such Stock is not removed within 4 weeks of the date on which it has been delivered to the Studio, I Heart Studios may dispose of it in any way it deems fit). This clause is not concerning Prop stock, which will be in the studio space for the duration of one or more seasons;
2.1.3. provide such other In-put Material and Input Services as I Heart Studios may reasonably require, in accordance with the Schedule of Work or, where not specified in the Schedule of Work, at the times and locations reasonably required by I Heart Studios;
2.1.4. co-operate with I Heart Studios in all matters relating to the Services and each Shoot; and communicate in a timely manner;
2.1.5. where I Heart Studios has agreed to provide test shots for the Images, approve all such test shots in accordance with the timescales in the Schedule of Work.
2.1.6. book (and pay for) all models required by The Client for each Shoot and take responsibility for ensuring that all such models arrive on time and perform their services during the Shoot as required by I Heart Studios. In exceptional circumstances where I Heart Studios has agreed, as part of the Services, to book models for a particular Shoot, The Client and I Heart Studios shall agree the booking (to ensure that the model fits with any style guide), however The Client acknowledges that the contract to provide the model shall be between The Client and the model/model agency and that I Heart Studios shall only make such booking as agent for The Client and not as a principal in law (and the provisions of clause 3.1.11 shall apply;
2.1.7. be responsible for obtaining all required model, location and/or third party intellectual property releases for the Images;
2.1.8. be responsible for delivery, handing and insuring of Stock when in transit and at premises or locations other than the Studio;
2.1.9. observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Studio and that have been communicated to it by I Heart Studios;
2.1.10. ensure that all Stock and other Input Material is suitable for the purposes for which it is to be used in relation to the Services.
2.1.11. If I Heart Studios’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of The Client, its agents, subcontractors, consultants or employees, I Heart Studios shall not be liable for any costs, charges or losses sustained or incurred by The Client that arise directly or indirectly from such prevention or delay.

3. Changes and rejection of Images and Deliverables

3.1 The Client shall not be permitted to reject the Images after delivery via the Image System unless

3.1.1 The Client notifies I Heart Studios within the timescales set out in the Schedule of Work; and
3.1.2. such Images are below the specific resolution of the test shots or do not comply with the style guide, shoot guide and post production guide (if any).

In the event of a valid rejection under this Clause, I Heart Studios shall remedy the defect as soon as possible. This is The Client’s exclusive remedy in relation to rejection of the Images.

3.2. Any other changes to the Images required by The Client will be subject to additional fees and charges, to be agreed by the parties.

4. Cancellations

4.1. The Client may only cancel a Shoot before any Shoot Date on the terms set out in this Clause. All cancellations must be in writing per email.

4.2. The Client must pay to I Heart Studios any costs or expenses incurred by I Heart Studios in relation to any cancelled Shoot. I Heart Studios will invoice The Client for such costs within 30 days after receipt of the notice of cancellation from The Client with a fee lower or equal to the original agreed fee.

4.3. The Client shall pay to I Heart Studios the Cancellation Fee if written notice of cancellation is received by I Heart Studios less than 24 hours prior to the Shoot Date. However, no Cancellation Fee shall be payable if I Heart Studios is able to reschedule the cancelled Shoot for another Shoot Date. (although any costs referred to in clause 4.2 are still payable). Such payment is in addition to any payments due under clause 4.2 and shall be invoiced by I Heart Studios at any time after receipt of the notice of cancellation from The Client.

4.4. f a Shoot does not take place or cannot be completed (other than due to a breach of this Agreement by I Heart Studios) and no written notice of cancellation is received by I Heart Studios, The Client shall be deemed to have cancelled the Booking within 24 hours of the Shoot Date for the purposes of this Clause 7 and I Heart Studios shall invoice The Client for any costs and/or expenses within 30 days after the Shoot Date with a fee lower or equal to the original agreed fee.

4.5. Where there is more than one Shoot Date, separate cancellations are required for each individual Shoot Date.

5. Charges and payment

5.1 In consideration of the provision of the Services by I Heart Studios, The Client shall pay the Charges.

5.2. I Heart Studios shall obtain The Client’s approval before incurring any Charge exceeding €100 unless it is part of the pre agreed costing structure.

5.3. Charges shall be invoiced at cost price and claims for payment in respect of Charges shall be payable by The Client only if accompanied by relevant receipts.

5.4. Any other sums payable by The Client under this Agreement (such as Cancellation Fees) shall be included in any invoice issued by I Heart Studios for the Charges or invoiced separately.

5.5. All invoices shall by raised by I Heart Studios within 20 Working Days of the Images and/or any other Deliverables created under the Agreement being delivered to The Client.

5.6. The Charges exclude the following costs, which I Heart Studios shall obtain The Client’s approval for before incurring, whatever the amount:

5.6.1. the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom I Heart Studios engages in connection with the Services (non studio shoot), which shall be invoiced by I Heart Studios at cost;
5.6.2. the cost of any materials and the cost of services reasonably and properly provided by third parties and required by I Heart Studios for the supply of the Services (such as model’s fees, where I Heart Studios has agreed to book the models in accordance with this agreement). Such expenses, materials and third party services (agreed in writing in advance) shall be invoiced by I Heart Studios at cost together with any additional handling or administration fee set out in the Schedule of Work;
5.6.3. the cost of delivering Images other than via the Image System, which shall be charged in accordance with I Heart Studio’s prevailing rates (agreed in writing in advance);
5.6.4. any specific additional charges which are set out in the Schedule of Work; and
5.6.5. VAT, which I Heart Studios shall add to its invoices at the appropriate rate.

5.7. The Client shall pay each invoice submitted to it by I Heart Studios, in full and in cleared funds, within 21 days of the date of invoice, without deduction or set-off.

5.8. If The Client does not comply with the lead times set out in the Schedule of Work (and I Heart Studios agrees to go ahead with such Shoot) or if delays are caused by, or additional works or services are required by, The Client due to any failure by The Client to provide Input Materials, Input Services, instructions or approvals as are required under this Agreement, I Heart Studios shall be entitled to charge additional Charges at its then prevailing rates.

5.9. All invoices shall be paid by direct bank transfer to a bank account nominated in writing by I Heart Studios

6. Intellectual property rights

6.1. The Client will retain exclusive interest in and ownership of its intellectual property owned or developed before this agreement or owned or developed outside the scope of this agreement.

6.2. Solely for the development of the Services, the Client grants I Heart Studious a non-exclusive, limited license to use the Client’s intellectual property rights, as specified by the Client for each Shoot.

6.3. Subject to the receipt of the full payment of the Charges corresponding to each Shoot, I Heart Studios shall irrevocably transfer and assign to the Client all copyrights and any intellectual property rights that may arise from the Images, Deliverables and/or Creative Shoots, regarding which the Client shall retain exclusive interest and ownership. As a result, in consideration of the full payment of the Charges received per each Shoot, I Heart Studios acknowledges and confirms to not hold any title, interest, ownership, copyright and/or any intellectual property right on the Images, Deliverables and/or Creative Shoots developed per each Shoot.

6.4. Upon the Client’s written request, I Heart Studios shall promptly perform all acts and execute all documents required by the Client from time to time for the purpose of securing the Client’s full benefit of this agreement; including the acts and/or documents required to transfer the rights, title and interest on the Intellectual Property rights, in accordance to clause 10.3. Any legal and/or administrative costs required the exercise of this Clause 10.4 shall be at the Client’s expense.

6.5. During the development of the Services, I Heart Studios commits to not infringe intellectual property rights held and owned by third parties without their authorization. Should I Heart Studious infringe intellectual property rights held by third parties, I Heart Studious shall keep the Client harmless and indemnified against any costs, claims, losses, damages, interest, expenses (including reasonable lawyers fees).

6.6. The Client shall be solely responsible for determining whether any additional licences or permits are required for the use of the Images, Deliverables and/or Creative Shoots. The Client shall indemnify and keep I Heart Studios indemnified against any costs, claims, losses, damages, interest, expenses (including reasonable lawyers fees) arising out of or in connection with any failure by The Client to obtain the necessary licenses referred in the present Clause.

6.7. I Heart Studios shall be solely responsible for determining whether any additional licenses or permits are required for the use and/or contracting of each model, property and/or location required for the development of the Services. I Heart Studios shall obtain written absolute waivers of any moral rights in the products of the Services (including any Deliverables) to which any individual is not or may be at any future time entitled. I Heart Studios shall indemnify and keep the Client indemnified against any costs, claims, losses, damages, interest, expenses (including reasonable lawyers fees) arising out of or in connection with any failure by I Heart Studious to obtain the necessary licenses and waivers referred in the present Clause.

6.8. Subject to the Client’s written consent and approval, I Heart Studios may use of the Images, Deliverables and/or Creative Shoots as example of its work in its products of the Services under this agreement as examples of its work in its portfolio and/or otherwise solely for the purposes of the marketing and promotion of I Heart Studios body of work and business. Should the Client provide the afore mentioned approval, the Client reserves the right to condition or revoke it at any point in time.

6.9. During the term of this agreement and for a period of two (2) years thereafter, I Heart Studios shall maintain in force, with a reputable insurance company, a public liability insurance and professional indemnity insurance in an amount not less than EUR 500,000 per incident, and shall, on the Client’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.

7. Image System

7.1. Unless otherwise stated in the Schedule of Work, Images and other Deliverables created during a Shoot shall be uploaded by I Heart Studios to the Image System in the time scales set out in the Schedule of Work. Use by The Client of the Image System shall be subject to Schedule 5. Images and other Deliverables shall be available for The Client to access and download from the Image System and:

7.1.1. If The Client has not purchased a subscription for the use of the Image System, The Client must download all Images and other Deliverables from each Shoot within 8 weeks of it being made available to The Client. Any Images or other Deliverables not downloaded within 8 weeks of them being made available on the Image System may be deleted by I Heart Studios; or
7.1.2. If The Client has purchased a subscription for the use of the Image System (as specified in the Schedule of Work), Images and other Deliverables made available by I Heart Studios shall be available for access and download during the period of such subscription (not being longer than the period of this Agreement) and for up to 4 weeks after the end of such subscription period, after which time they may be deleted.

It is The Client’s responsibility to ensure that it downloads Images and other Deliverables within the timescales set out in this Clause. I Heart Studios has no responsibility or liability for any failure by The Client to comply with such timescales.

7.2. I Heart Studios reserves the right to discontinue the use of the Image System at any time and either replace it with another online image delivery system or implement any other form of delivery in respect of the Images and other Deliverables. Further fees or charges may be payable by The Client in respect of any such alternative image delivery system or method, provided this is agreed by both parties in writing in advance).

8. Confidentiality

8.1. Each party (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party (the “Disclosing Party”), its employees, agents, consultants or subcontractors and any other confidential information concerning the Disclosing Party’s business, products or services which the Receiving Party may obtain.

8.2. The Receiving Party may disclose such information:

8.2.1. to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Receiving Party’s obligations under this Agreement; and
8.2.2. as may be required by law, court order or any governmental or regulatory authority.

8.3. The Receiving Party shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 12.

8.4. The Receiving Party shall not use any such information for any purpose other than to perform its obligations under this Agreement.

9. Limitation of liability

9.1. This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to The Client in respect of:

9.1.1. any breach of this Agreement however arising;
9.1.2. any use made by a The Client of the Services, the Images, other Deliverables or any part of them; and
9.1.3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

9.2. The liability of each The Client under this Agreement and this Clause 10 is several.

9.3. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

9.4. Nothing in this Agreement limits or excludes the liability of I Heart Studios:

9.4.1. for death or personal injury resulting from its negligence; or
9.4.2. fraud or fraudulent misrepresentation; or
9.4.3. any matter for which liability cannot be excluded or restricted by law.

9.5. Subject to clause 14.2 and clause 14.4:

9.5.1. No party shall be liable to any other party for:
9.5.1.1. any loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, or information; or
9.5.1.2. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

9.5.2. Save for each party’s indemnity obligations and subject to clause 14.4 each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to £750,000..

10. Termination

10.1. Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving written notice to the other if:

10.1.1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment; or
10.1.2. the other party commits a material breach of any of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
10.1.3. the other party has a receiver, administrator or administrative receiver appointed over all or a substantial part of its assets, or is the subject of any petition for winding up or issues any notice in connection with the passing of any resolution by its shareholders for its winding-up or is otherwise the subject of proceedings for bankruptcy or enters into a voluntary arrangement or is otherwise unable to pay its debts as they fall due, or ceases trading or if any events or circumstances occur which are analogous to the foregoing in another jurisdiction.

10.2. On termination of this Agreement for any reason:

10.2.1. The Client shall pay to I Heart Studios all of I Heart Studios’ outstanding unpaid invoices (and interest) in accordance with their due dates and, in respect of Services supplied but for which no invoice has been submitted, I Heart Studios may submit an invoice, which shall be payable within 30 days of the date of invoice;
10.2.2. The Client’s rights to use the Image System shall terminate (subject to The Client’s right to download any remaining Images or other Deliverables in accordance with the timescales set out in Clause 11.1);
10.2.3. I Heart Studios shall make the Input Materials and any Stock available for collection by The Client;
10.2.4. the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination; and
10.2.5. clauses which expressly or by implication have effect after termination shall continue in full force and effect, including the following clauses: clause 10 (Intellectual property rights), clause 12 (Confidentiality), clause 14 (Limitation of liability), clause 16 (Employees) clause 17.2 and clause 18 (General).

11. General

11.1. Force majeure: If either party is affected by any circumstances beyond its reasonable control (including any war or military action, terrorism, sanction, strike, fire, natural disaster, epidemic, or pandemic (“Force Majeure Event”) it shall forthwith notify the other party. Neither party shall be liable to the other for delay in performance, or non-performance of any of its obligations under this Agreement due to any Force Majeure Event of which it has notified the other and the time for performance of that obligation shall be extended accordingly.

11.2. Entire Agreement: This Agreement (together with each completed Booking Form) constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement or the Booking Form. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement

11.3. Non-solicitation: The Client and I Heart Studios will not solicit or entice away (or attempt to solicit or entice away) from the employment of I Heart Studios or any person employed or engaged by I Heart Studios in the provision of the Services at any time during the Term and for 6 months after the end of the Term, other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of I Heart Studios or The Client.

11.4. Assignment and subcontracting: Neither party may at any time assign, transfer, charge or deal in any other manner with all or any of its rights under this Agreement without the written consent of the other party. I Heart Studios may subcontract its obligations under this Agreement.

11.5. Notices:

11.5.1. Any notice or other communication required to be given to a party under or in connection with this Agreement shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, to its address set out in Schedule 2 (or as otherwise notified in writing), or sent by email to its email address set out in Schedule 2 (or as otherwise notified in writing).
11.5.2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.30 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by email, on the date and time it is sent (subject to any error message or bounce back). If any email is sent on a day which is not a Business Day (or after 6.00pm (local time) on any Business Day) then it shall be deemed to have been received at 9.30am on the next following Business Day.
11.5.3. Email may not be used for the service of any proceedings or other documents in any legal action except for shoot cancellation.

11.6. Waiver: A waiver of any right under this Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

11.7. Severance: If a court or any other competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

11.8. No partnership: Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

11.9. Third parties: A person who is not a party to this Agreement shall not have any rights under or in connection with it.

11.10. Variation: Except as set out in this Agreement, any variation, including the introduction of any additional terms and conditions, to this Agreement, shall only be binding when agreed in writing and signed by both parties.

11.11. Governing law and Jurisdiction: This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Dutch law, and the parties irrevocably submit to the exclusive jurisdiction of the Dutch courts.