This Terms Of Service Agreement (the “Agreement”) is between Gusto Media Ltd and the “Client” (collectively the “Parties”). This Agreement sets forth the legally binding terms for the Client’s use of Gusto Media Ltd services. The Parties agree as follows:
1.1 Gusto Media Ltd will always endeavour to complete its assignment and every effort is made to comply with the client’s wishes to perform the video and photographic services (the “Services”) as requested and described in the Client’s brief at the given date, time and location (collectively referred to as the “Project”). The time and date are subject to change by Gusto Media Ltd for any reason including but not limited to: weather, personal injury, illness or act of God.
2.1 Gusto Media Ltd will provide the video and UAV related equipment necessary to perform the Services, on occasion specialist equipment may need to be hired at additional cost that will be agreed with you before commencing any work.
OWNERSHIP, COPYRIGHT, SHARING & USAGE:
3.1 The Parties agree that all work performed for the Client shall be considered as works made for hire as contemplated and defined in the United Kingdom Copyright, Designs and Patent Act 1988. The Parties acknowledge and agree that the Client will not hold any intellectual property rights in the recording of the Project including, but not limited to, copyright and trademark rights.
3.2 Gusto Media Ltd has exclusive and complete ownership in the intellectual property inherent in the recording of the Project at any time after such recording. In addition, the Client agrees that Gusto Media Ltd shall still maintain an exclusive, transferable, sub-licensable, royalty-free, worldwide license to use the stills photography and/or video.
3.3 Naturally we are proud of our work and Gusto Media Ltd actively promotes its media and we do reserve the right to use ANY of our footage for our promotion, whether this be inclusion on our showreel for PR purposes or to promote Gusto Media Ltd.
3.4 The Client agrees and acknowledges that Gusto Media Ltd may reasonably use the recording of the Project in their portfolio or for stock purchase. Further, Gusto Media Ltd may display the Client’s name and logo on their website as a party with whom they have worked.
3.5 Unless a buyout of footage is specifically agreed and contracted, Gusto Media Ltd retains the copyright of all media (still photography and video) content. The client purchasing the service of Gusto Media Ltd will get full use of the material, however the client does not have the legal authority to sell the footage or allow 3rd party companies to use it without the express written agreement of Gusto Media Ltd.
3.6 In all cases where the client uses the relevant media, Gusto Media Ltd must be identified and credited as the service provider.
3.7 You (our client) acknowledge and agree that title and ownership of all ordered products shall remain with Gusto Media Ltd until the full purchase price for the same has been satisfied to Gusto Media Ltd.
3.8 If you have any questions or issues with any the above we would ask you to kindly speak to us in advance of commencement of filming.
4.1 The Client agrees to the total amount stated in their Invoice.
5.1 Client will make a one-time payment to Gusto Media Ltd for the invoiced total
5.2 The Client shall pay Gusto Media Ltd prior to any work being started as a reservation fee. This fee is not refundable and will be credited to the final amount owed
5.3 The Client will pay Gusto Media Ltd multiple payments over a defined term.
5.4 In the case of work being required by the client to be done in phases, Gusto Media Ltd reserves the right to partially invoice at stages. Gusto Media Ltd reserves the right to add statutory late payment interest (Base Rate + 8%) to overdue accounts (Late Payment of Commercial Debts (Interest) Act 1998).
5.5 Following clients’ approval of all media viewed, all payments due are to be paid and cleared within 28 working days.
5.6 Gusto Media Ltd will provide all required bank details for the electronic transfer of all agreed fees. Payments are by BACS only.
PRIVACY OF PROPERTY AND PERSONS:
6.1 The Client warrants that they represent the owner or authority of any location or property being filmed, and have secured permission to film the selected location and/or property outlined for the Service.
6.2 The Client is responsible for notifying any person that shall be present at the Project, including but not limited to: Attendees and guests, the proper authorities, owners of property, government officials (where applicable), agents or representatives and any other applicable parties that video and/or audio will be recorded by Gusto Media Ltd.
6.3 Gusto Media Ltd agrees to not include the likeness, image, or identifiable features of any person, property, or logo if instructed by the Client or persons present at the Project.
7.1 All work shall be completed in a professional manner, and in compliance with all applicable laws.
7.2 Gusto Media Ltd shall not be liable for any delay due to circumstances beyond our control.
7.3 Gusto Media Ltd is an independent Contractor and not an employee of the Client.
7.4 No modification of this Contract shall be valid unless in writing and agreed upon by both Parties. Both Gusto Media Ltd and the Client must sign any changes to this document.
7.5 The Client shall indemnify and hold Gusto Media Ltd harmless from all liability for loss, damage, or injury to persons or property resulting from the negligence or willful misconduct of the Client.
7.6 Gusto Media Ltd’s liability for loss, damage, or failure to deliver the Project (stills photography and/or video) shall be limited to the return of all payments made.
7.7 This Agreement shall be construed in accordance with the laws of the United Kingdom.
7.8 Neither the Client nor Gusto Media Ltd may assign this Agreement without prior written consent from the non-assigning party.
7.9 The headings of the sections herein are for convenience only, and shall not affect the meaning of the provisions of this Agreement.
7.10 This Agreement constitutes the entire agreement between the Client and Gusto Media Ltd, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
GENERAL TERMS AND CONDITIONS
8.1 Each job is unique with many variable factors. Therefore, Gusto Media Ltd prefers to estimate on an individual project basis, after having discussed or been fully briefed on the proposed project.
8.2 There are a number of variables which may affect the estimate including the time of year (affecting our location of shoot, potential weather and other external shooting conditions, associated risk of taking the job on, requirements for additional CAA approvals and site visits.work load),
8.3 Travel expenses for UK jobs will be billed at 50p per mile. The starting point of all mileage will be from our office base in Brighton. If accommodation is required, that will also be billable though this will be agreed with the client beforehand.
8.4 We will be happy to discuss any of the above with you in greater detail and think you will find us fair, reasonable and transparent.
8.5 We are happy to provide any estimates in writing once we have received a full brief from the client and been able to discuss the requirements and expectations.
8.6 Written estimates will be supplied for all work on receipt of a clear and accurate written brief from the client. Written briefs are required to ensure objectives are well defined for both the client and Gusto Media and to avoid errors.
8.7 For aerial work, the brief may need to include, but is not limited to, full postal address with postcode, maps, site plans with boundaries and the North compass bearing clearly marked, ordnance survey grid references (6-figure) and any other material required to accurately identify the site from the air.
8.8 The estimate and fee will be inclusive of all preparatory work, provision of any written documentation (e.g. risk assessment where required) or permission required (e.g. by the Civil Aviation Authority, Air Traffic Control, Police and relevant landowners), travel and accommodation (where necessary) and post-production processing work and digital delivery of images.
8.9 For UAV work, unless otherwise stated, the estimate will be for the amount of aerial photography reasonably achievable within one day. The fee quoted will reflect the proposed uses of the images, as stated by the client, for which full personal reproduction rights will be granted. A series of assignments is treated as a set of individual contracts. Additional reproduction rights may be negotiated at a future date.
9.1 All enquiries will be treated in the strictest confidence
PHOTOGRAPHIC or video MATERIAL SUPPLIED
10.1 Still photographic or video material will normally be shot on digital camera equipment. Editing, retouching, digital manipulation and stitching of supplied images is available at an additional cost, when feasible. Whilst we will endeavour to provide an accurate colour rendition of the original scene, we cannot guarantee to match the colour perceived by the human eye.
10.2 All original photographic material (i.e. high-resolution digital RAW/tiff files and/or Video) remains the property of Gusto Media Ltd.
LEGAL REPRODUCTION RIGHTS, MORAL RIGHTS AND COPYRIGHT (COPYRIGHT, DESIGNS AND PATENTS ACT 1988) AND PROPERTY MISDESCRIPTIONS ACT 1991.
11.1 Limited reproduction rights of the commissioned material pass to the client upon full settlement of the final invoice. This allows reproduction for all uses stated on the quotation from Gusto Media Ltd. By default, and in the absence of any stated use, this will be ‘General Marketing’. ‘General Marketing’ use excludes use for ‘merchandising’ (e.g. reproduction of an image for promotion on goods for resale), for which an additional fee will need to be negotiated.
11.2 Unless agreed in advance, use of the images by any third party (including, but not limited to, newspapers, magazines, book publishers, television, film and the Internet) will only be granted following written permission from Gusto Media Ltd. This will incur a negotiated reproduction fee.
11.3 We abide by the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008. We will not alter our images to deliberately mislead the viewer. We remind users of our images that publishing old images (which were taken much earlier when the views were significantly different), without indicating capture date, could be misleading. Both of these activities may be considered as offences under these Regulations.
12.1 We grant you (our client) an exclusive licence to use the commissioned material as agreed previously for a period of 12 months from the date of delivery of the commissioned material from Gusto Media Ltd to you (our client) or from the date that full payment has been received by Gusto Media Ltd from you (our client) for the commissioned material, whichever is the later. After the period of the licence as stated it will have expired:
12.2 We grant you (our client) a non-exclusive licence to use the commissioned material in perpetuity and in agreement as previously expressed. And you (our client) agree that Gusto Media Ltd may use the images ourselves and that Gusto Media Ltd may also licence the images to third parties without reference to you (our client).
12.3 Gusto Media Ltd shall be granted complete artistic licence including in relation to the poses photographed and the locations used. The photographer’s judgement regarding the locations/poses and number of images taken shall be final. Due to the vagaries of the weather and the willingness of subjects it may not be possible to capture all the images requested.
AVAILABILITY AND BOOKING FOR AERIAL SHOOTS
13.1 Due to the nature of the weather in the UK and nature of aerial shoots we are very flexible when working with clients. Many of our jobs are very last minute. However, we must have enough time to do pre-flight checks and ensure that the job can be undertaken safely, adhering to the rules & regulations of aerial filming and our operating licence.
14.1 If a site survey is needed prior to the quotation, the cost will be agreed and invoiced accordingly. The client must confirm in writing that it has permission to access the ground that will be used to take off and land.
POSTPONEMENTS, CANCELLATIONS & WEATHER
15.1 Remote controlled aerial filming is naturally affected by the flying conditions. If due to weather (i.e. rain, strong winds etc.) we are not able to shoot we shall not charge the client if we can make alternative arrangements for the shoot to happen at another time. If the shoot cannot be re-scheduled (which we usually know in advance of the carrying out the job) we will discuss cancellation policy and potential fees with the Client and come to a fair and reasonable compromise.
15.2 If a job is by a pre-agreement, costs that have been incurred will have to be met by the client.cancelled due to other issues and simply not re-scheduled due to the client no longer requiring our services and if Gusto Media Ltd has incurred costs/fees unless
CANCELLATION BY Gusto Media Ltd
16.1 If Gusto Media Ltd cannot shoot due to adverse weather conditions or mechanical failure, and the shoot cannot be rescheduled, Gusto Media Ltd will refund all advance monies paid for that day. Costs incurred prior to the shoot day such as paid-for site visits and meetings are excluded and remain due for payment.
16.2 If Gusto Media Ltd cannot shoot due to reasons that only become evident once on site or for reasons that Gusto Media Ltd was not advised of beforehand, then the full cost will remain due for payment. Gusto Media Ltd may, at its sole discretion, offer a discount on a reshoot should one be scheduled.
CANCELLATION BY YOU
17.1 Notice of cancellation by the client must be received in writing by Gusto Media Ltd, and the notice is not valid until confirmed in writing by Gusto Media Ltd.
17.2 A cancellation fee will apply at the rate of 50% of the Full Day Rate if the shoot is cancelled within 72
hours of the pre-agreed production day. A cancellation fee of 100% of the Full Day Rate will apply if the
shoot is cancelled within a 48 hour period from the agreed upon production day. These cancellation times
are to be measured by standard business days, excluding weekends and public holidays.
17.3 Preparatory works, such as travelling charges, documentation writing and other pre-production activities relating to the shoot, where costs have been incurred by Gusto Media Ltd, will remain due for payment in full.
PERMISSION TO CONDUCT AERIAL FILMING/PHOTOGRAPHY
18.1 Flight permission is generally granted within a day or so, however with UAV photography, permission from the Civil Aviation Authority (CAA), local Police, other authorities and relevant landowners, when needed, can take several weeks (CAA may require up to 28 days written notice of intention to fly). This is usually granted but certain height and/or other conditions may be applied). All work is subject to obtaining permitted and legal access from which to safely operate the UAV equipment.
18.2 During the operation it is the pilot’s responsibility to fly the drone safely and responsibly. Should it become apparent that an elevation, angle or speed for a filming operation requested by the client will compromise the operational safety, Gusto Media Ltd’s pilot will abort the flight.
18.3 Gusto Media Ltd will try to capture the images at another elevation, angle or speed but cannot guarantee that this will be as originally requested for filming. It is always advisable to request a site visit and discussion prior to operational deployment. Usually these are part of the estimate; however, there may be a charge for a site visit depending on location and urgency.
LIMITATION OF LIABILITY, WEATHER, FORCE MAJEURE, ACT OF GOD AND OTHER CONSTRAINTS
19.1 As with any outdoor location photography, a successful outcome depends upon suitable weather conditions. A decision to photograph on a particular day is normally delayed to the last practical moment to maximise the chance of suitable weather.
19.2 The UAV and camera weigh approximately 2Kg. whilst the UAV has built-in self-stabilising measures, it is a flying platform and is subject to movement by the wind and will tilt whilst being held against the wind. This will impact on the image quality, steadiness and the angle of the picture(s). We will endeavour to obtain the best quality pictures for the conditions and certain adjustments can be made afterwards in post-processing. However, the images and video are not guaranteed to be steady and of broadcast standards (for instance).
19.3 If the work could not be completed due to client reasons (e.g., but not limited to, lack of access or unscheduled site activity etc.), the client may be charged to recover costs and time.
19.4 Gusto Media Ltd will always endeavour to complete its assignments by proposed completion dates. However, due to weather and other operational constraints, Gusto Media Ltd cannot guarantee completion on or by any specific date. It, therefore, cannot be held responsible for any missed publishing or other deadlines or any consequential costs involving the timing of the commission.
19.5 The completion of work may be subject to alteration or cancellation due to cause or causes beyond our control. Certain requested shots from specific locations, directions and heights, quoted to be undertaken, may not be possible on the day for various operational reasons. In this case, the best possible alternative shot(s) will be supplied and these will be deemed to fulfil the contract.
19.6 The client understands and accepts that event coverage will be as the photographers professional expertise determines and that no one photograph/video will be more important than another. Special requests are not binding instructions, although every effort is made to comply with the client’s wishes.
19.7 Battery limitations for the UAV mean that each flight will last a maximum of approximately 20 minutes. This will normally generate up to 15 minutes of photographically usable flight time. After this time, the UAV must descend for a battery change.
19.8 In exceptional circumstances, Gusto Media Ltd may not be able to completely fulfil or complete a contract at all. In these cases, it will refund part or all of any deposit received and not accept any other liability. In any event, the liability of Gusto Media Ltd will be limited to the total value of the contract with no liability accepted for indirect and/or consequential loss.
19.9 Gusto Media Ltd does not accept liability for errors resulting from incomplete or inaccurate instructions from the client’s written brief, nor for delays or restrictions caused by Air Traffic Control, CAA or the Police or similar bodies.
19.10 Whilst back-up copies of images are usually kept, Gusto Media Ltd accepts no responsibility nor has liability for maintaining archive copies of photographic material after the work been delivered to and accepted by the client.
19.11 Gusto Media Ltd has all necessary insurances, including Public Liability Insurance of £5 million pounds for land and Professional Indemnity Insurance of £250,000. These can be increased if necessary.
19.12 Gusto Media Ltd and its employees and agents shall be under no liability for any injury, loss, or damage of any kind whether direct, consequential or special and howsoever caused resulting from or arising out of or incidental to:
19.13 Any negligence on the part of us or our employees (except insofar as the same causes death or personal injury) or
19.14 Our performance of or failure to perform or breach of any of its express implied obligations under the contract.
19.15 You shall indemnify us against any liability whatsoever (including any liability based on the negligence of you) which it may incur resulting from any claim made against you by any third party.
19.16 We accept no liability for delay or non-fulfilment of any term of the contract caused wholly or in part by “force majeure”, which expression shall be deemed to include war, strikes, lockouts, accidents, fire, scarcity or materials or any other cause or causes not within our direct control.
20.1 Any complaints should be raised with Gusto Media Ltd in writing, within 28 days of first becoming aware of the matter and in any event within 28 days of receipt of the images/video.
21.1 No failure or delay on the part of us to exercise its rights under the contract shall operate as a waiver thereof nor shall any single nor partial exercise of any such right exclude any other or further exercise thereof. Any waiver of a breach of any provision of the contract shall not affect our rights in the event of any further or additional breach or breaches.
21.2 Notwithstanding termination of the contract these conditions shall continue in full force and effect for so long as is necessary after such termination to give full effect to the provisions contained in these conditions
21.3 The contract shall be construed in accordance with English law, which shall be the proper law of the contract and the English court shall have sole jurisdiction in relation to the provisions contained in these conditions.
21.4 The clause headings in these conditions are for convenience only and shall not affect the interpretation hereof in any way whatever.
21.5 Each and every obligation contained in the clause or sub-clause of these conditions shall be treated as a separate obligation and shall be severally enforceable as such and the non-enforceability at any time of the clause or sub-clause of these conditions shall not prejudice the enforceability of the remainder.
21.6 These Conditions are stipulated by Gusto Media Ltd on our own behalf and on behalf of all our employees and agents and apply for the protection of all its employees and agents as for Gusto Media Ltd.
21.7 The client undertakes not to sue or make any claim whatever against any employee or agent of Gusto Media Ltd in respect of any alleged negligence or other default of that employee or agent in relation to the carrying out, failure to carry out or breach of any contract.
21.8 The client acknowledges and agrees by placing orders with Gusto Media Ltd that:
21.9 This is a transaction into which both parties are freely entering.
21.10 There are clauses contained in these conditions, which exclude, limit or modify the liability of Gusto Media Ltd and our employees and agents
21.11 All charges exclude VAT, which will be charged at the prevailing rate, (where applicable) and are subject to these Terms and Conditions
21.12 The client acknowledges that they have read this agreement and both understand and agrees with Gusto Media Ltd regarding all of the Terms and Conditions.