Supplier Agreement – Terms & Conditions
Taylor James Ltd USA
This agreement (“Agreement”) is made between Taylor James Ltd. (“Taylor James”) and ____________________ (“Customer” or “You”) under which Taylor James shall provide to Customer certain agreed services (the “Services”) as indentified in the quotation attached hereto as Schedule A (“Agreed Quote”) and the Work Product (as defined below) upon which the Customer shall make payments to Taylor James as set forth in the Agreed Quote. This Agreement shall control the terms of the Agreed Quote which are incorporated into this Agreement.
“Agreed Price” shall mean the payment amount agreed to by the parties and identified in the Agreed Quote to be paid by Customer to Taylor James for the Services.
“Reproduction” shall include any form of copying, displaying or publication, whether in whole or in part of any Work Product (as defined below), whether by printing, photography, photocopier, scanner, or slide projection (whether or not to an audience), by electronic, digital or mechanical means, in a layout or presentation, or by any other means. Reproduction further includes the copying, manipulation or distortion, whether in whole or in part, of any Work Product even though the resulting image may not appear to a reasonable person to be derived from the original image. “Work Product” shall mean any and all images, photographs, CGI imagery, designs, artwork, drawings and material furnished by Taylor James in connection with the Services, whether prints or any other type of physical or electronic material whether now known or invented in the future.
The Customer acknowledges and agrees that (i) the Work Product is protected by one or more copyright, trademark and other intellectual property laws, and (ii) Taylor James shall retain exclusive ownership of any and all right, title and interest in and to all Work Product, including without limitation copyright rights. The only rights granted to the Customer are specifically identified in this Agreement and its attached schedules and all other rights are reserved to Taylor James.
3. LICENSE TO USE
In consideration of the Customer’s full payment of the Agreed Price and all invoice(s) related to the Services, and in consideration of your acceptance of the provisions of this Agreement, Taylor James hereby grants you a personal non-transferable, non-assignable, non-sublicensable, non-exclusive, limited right to use the Work Product in the territory specified in the Agreed Quote subject to the terms and conditions of this Agreement (“License”).
The Customer will be authorized to publish the Work Product in accordance with the Agreement and the terms and conditions set forth in the Agreed Quote to the exclusion of all other persons for the term of the License as identified in the Agreed Quote (“License Term”); however, the Customer acknowledges and agrees that Taylor James shall retain the right in all cases to use the Work Product in any other manner at any other time and in any part of the world for the purposes of advertising or otherwise promoting Taylor James’ work and services. Upon the expiration of the License Term, Taylor James shall be entitled to use the Work Product for any purpose, in any manner whatsoever in any territory of the World. Upon the expiration of the License Term, the Customer shall return the original Work Product to Taylor James in good condition within thirty (30) days by the delivery method specified in the Agreed Quote.
A) PERMITTED USAGE:
i) use the Work Product for editorial, product, and promotional uses, including but not limited to, products, software, newsletters, advertisements, book covers, packaging, marketing material, presentations, and within animation, films or videos, provided that such usage complies with the terms and conditions in this Agreement, except as such use may be modified or limited as set forth in the Agreed Quote; and
ii) edit, modify or alter images as necessary for your use provided that the subsequent image otherwise complies with this Agreement and prior written consent is obtained from Taylor James. If requested by Taylor James, you agree to execute a written assignment of any copyrights with respect to such derivative work when such assignment is reasonably necessary to enable Taylor James to enforce intellectual property rights: and
iii) in the normal course of business, convey to third parties such as printers, a temporary copy of the Work Product without which your work project could not be completed.
(B) PROHIBITED USAGE:
YOU ACKNOWLEDGE AND AGREE THAT THE FOLLOWING IS PROHIBITED USAGE OF THE WORK PRODUCT:
(i) Any derivative use of the Work Product unless expressly approved in writing by Taylor James;
(ii) Use of the Work Product in a manner that is defamatory, pornographic or obscene, whether directly or in context or juxtaposition with specific subject matter;
(iii) Use of the Work Product in any way that violates civil or criminal laws such as those regulating pornography, obscenity, fraudulent schemes, counterfeiting, intellectual property, person’s right to privacy or publicity, and aid in illicit activities;
(iv) Sublicense, re-license, or lease of any Work Product, except as specifically approved in writing by Taylor James;
(v) Use of the Work Product to promote a business that sells or licenses photographic images or otherwise competes with Taylor James in any manner.
Unauthorized use of the Work Product constitutes copyright infringement and shall entitle Taylor James to exercise all right and remedies under applicable copyright law, including the right to recover attorney fees as a prevailing party, including an injunction preventing further use and monetary damages against all users and beneficiaries of the use of such Work Product. The foregoing is not a limiting statement of Taylor James’ right or remedies in connection with any unauthorized use of the Work Product.
4. ELECTRONIC STORAGE
Save for the purposes of reproduction for the uses granted in the License, the Work Product may not be stored in any form of electronic medium without the written permission of Taylor James.
(a) A Purchase order for 100% of the Agreed Quote must be received by Taylor James before any work shall commence. Payment by the Customer for the Services is on the basis of 50% before such services commence and 50% on delivery of the Work Product.
(b) Payment must be received by Taylor James within thirty (30) days from the date of the invoice, as per Taylor James’ standard payment terms. Any payment which is not made within thirty (30) days of the date of the invoice shall be deemed overdue and is subject to interest at (_)% per month. Interest is calculated from the date payment was due until the date payment, including accumulated interest, is paid in full.
(c) No use may be made of the Work Product in any manner before payment in full of all invoice(s) related to the Services without Taylor James’ express written permission. Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Customer is put into receivership or liquidation.
Where extra expenses or time are incurred by Taylor James outside of the scope of the Agreed Quote as a result of alterations of the Agreed Quote by the Customer, or otherwise at the Customer’s request, the Customer shall give approval to and be liable to pay such extra expenses or fees at Taylor James’ standard rate to Taylor James in addition to the expenses identified in the Agreed Quote.
If work is rejected by the Customer on the basis of style or composition, all agreed fees for the contract will remain applicable in full.
8. CANCELLATION & POSTPONEMENT
(a) Any contract between Taylor James and the Customer may only be cancelled or varied with the written consent of Taylor James and upon the terms of these conditions. The giving of Taylor James consent shall not in any way prejudice Taylor James right to recover from the Customer full compensation for any loss or expense arising from such cancellation or variation.
(b) Without prejudice to any other rights or remedies available to Taylor James, if notice of cancellation of a booking is received by Taylor James less than 24 hours prior to the date for performance of the contract, Taylor James shall be entitled to charge such booking in full under Taylor James rate card current at the date of such cancellation. If such a notice of cancellation is received less than ten working days but more than 24 hours prior to the date for performance of the contract, Taylor James shall be entitled, without prejudice to any other rights or remedies available to it, to charge such booking at one half of the full rate under Taylor James rate card current at the date of such cancellation.
(c) In regard to photographic and film productions, if postponement is required due to weather conditions, client shall pay full fees unless postponement is made 24 hours prior to departure to location, in which event client shall pay 50% of the fee and all expenses incurred up until that time.
9. CLIENT CONFIDENTIALITY
Taylor James acknowledges that it may receive from the Customer confidential information in rendering the Services. Taylor James shall keep such information confidential and will not disclose such information to any third parties or make use of material or information communicated to it in confidence for the purposes of the Work Product, save as may be reasonably necessary to enable Taylor James to carry out its obligations under the Agreement.
This obligation shall not apply to any information which is already disclosed to the public, is already known to Taylor James, or is not identified as confidential by the Customer.
The Customer may not assign the rights and obligations under this Agreement without obtaining the prior written consent of Taylor James.
Taylor James shall be entitled to appoint one or more sub-contractors in its sole discretion to carry out all or any of its obligations under this Agreement or any other contract between the Customer and Taylor James.
(a) Taylor James may immediately terminate this Agreement upon violation of any of its provisions or schedules. Upon termination pursuant to this Section 12, Customer must immediately stop using the Work Product, delete all copies of the Work Product from any computer or media owned or in the Customer’s possession, and all magnetic data.
(b) The filing of bankruptcy, insolvency or receivership proceedings by or against the Customer constitutes a material default under this Agreement and Taylor James shall be entitled to cancel this Agreement and any other contract between Taylor James and the Customer, in whole or in part, by notice in writing without prejudice to any right or remedy accrued or accruing to Taylor James. In the event that such cancellation occurs, Taylor James shall be paid for all services performed up to the date of such cancellation without prejudice to any claim by Taylor James for damages.
Should any clause of this Agreement be found unenforceable, that will not affect any other clause and each shall remain in full force and effect.
14. CUSTOMER WARRANTIES
The Customers represents and warrants that it will: (i) take all necessary steps to prohibit and prevent unauthorized duplication or reproduction of the Work Product; (ii) has the full right to enter into this Agreement and to perform and meet all of the obligations hereunder: and (iii) it is the owner of or has the right to use of and/or sublicense all right, title and interest, including without any limitation any copyright rights in and to any materials supplied by you to Taylor James in connection with the Services and that any use by Taylor James of such materials in connection with the Services shall not constitute the violation of any rights of any third party.
15. WORK PRODUCT DEFECT
If within thirty (30) days from the time of delivery to the Customer, the supplied digital Work Product is found to have a material defect, the Customer’s sole and exclusive remedy shall be the replacement of the damaged Work Product or a refund of the Agreed Price to be determined at the sole discretion of Taylor James. TAYLOR JAMES DISCLAUIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIIES OF MERCHANTABILITITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
16. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL TAYLOR JAMES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGE OR LOSS, INCLUDING, WITHOUT LIIMITATION, LOST PROFITS, LOSS OF BUSINIESS, BUSINESS INTERRUPTION OR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, WHETHER SUCH DAMAGES ARE BASED UPON A BREACH OF EXPRESS OR IMPLIED WARRANTIES, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THIS REMAINS THE CASE EVEN IF TAYLOR JAMES IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL TAYLOR JAMES’ LIABILITY UNDER ANY LEGAL THEORY (INCLUDING NEGLICENCE) EXCEED THE AMOUNT PAID BY YOU TO TAYLOR JAMES HEREUNDER FOR THE SERVICES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT FAIL IN THEIR ESSENTIAL PURPOSE. THE CUSTOMER HEREBY AGREES WITH TAYLOR JAMES THAT THIS CONDITION IS REASONABLE AND NECESSARY IN THE CIRCUMSTANCES AND THAT, HAVING REGARD TO THAT FACT, THE CONDITION DOES NOT WORK HARSHLY OR UNREASONABLY AGAINST THE CUSTOMER.
The Customer agrees to defend, indemnify and hold Taylor James, its officers, directors, subsidiaries, employees, affiliates, and other related entities, agents, representatives, successors and assigns harmless from and against any and all allegations, suits, claims, damages, costs and expenses or proceedings, including attorneys’ fees and disbursements, arising from or related to claims by third parties that arise or out of the acts and/or omissions of the Customer, its officers, directors, employees, agents, or sub-contractors, whether negligent or otherwise, related to any use of the Work Product.
Taylor James agrees to indemnify the Customer against all expenses, damages, claims and legal costs arising out of any failure by Taylor James to obtain any clearances for which it was responsible in respect of third party copyright works, trademarks, designs or other intellectual property. Taylor James shall only be responsible for obtaining such clearances if this has been expressly agreed upon in writing. In all other cases the Customer shall be responsible for obtaining such clearances and will indemnify Taylor James against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.
The Customer agrees that it will at all times maintain and keep effective insurance coverage with reputable insurers and for adequate levels of coverage which protect the Customer against any loss of liability which it may incur or suffer arising out of this Agreement. This includes, but is not limited to, insurance for any damage or loss for which Taylor James is not liable pursuant to the conditions in this agreement, insurance which protects the Customer against any accidental loss, damage or destruction to any master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media while in the possession or control of Taylor James. Taylor James shall have no liability for any damages or loss that arises from any failure by the Customer to maintain and keep effective such insurances.
19. APPLICABLE LAW
The Agreement shall be governed and interpreted exclusively according to the laws of the State of New York without regard to any state’s conflicts of law principles and any action commenced by either the Customer or Taylor James shall be brought exclusively in the courts of the State of New York and the federal courts located in New York County. Customer expressly agrees that it is subject to personal jurisdiction in the state and federal courts located in New York County and agrees to waive any defence in any action brought against Customer in such county that venue is improper or that the court lacks jurisdiction over the person of Customer in such county.
20. FORCE MAJEURE
In the event of the performance of any obligation accepted by Taylor James is prevented, delayed, or in any way interfered with by government, war, industrial dispute, strike, breakdown of machinery or by any other cause beyond Taylor James’ reasonable control. Taylor James may at its option, suspend performance or cancel its obligations under this Agreement without liability for any damages or consequential loss.
21. ENTIRE AGREEMENT AND MODIFICATION
This Agreement contains the entire agreement and understanding of the parties with respect to the matters described in this Agreement and supersedes all prior agreements and understandings oral or written between the parties. This Agreement may be modified only by a writing that is signed by the respective parties.
This Agreement may be executed in multiple counterparts by fax, electronic signature, and/or PDF of the same, each of which shall be deemed an original and all of which shall constitue one agreement.