Photo and Video

Definition of Terms

As used herein and throughout this Document:

Client means the client identified in the Proposal.

Client Content means any other materials, audio, script, project brief, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.

Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under the Copyright Act 2004.

Creative Content means all creative content developed or created by De’arry Imagesm or commissioned by De’arry GR, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, video footage, photography, animation, sounds, typographic treatments and text.

Deliverables means the services to create the video product specified in the Proposal to be delivered by De’arry GR to Client.

Final Deliverables means the final versions of Deliverables provided by De’arry Imagesm and accepted by Client.

Pre-Production means work required in relation to project brief, script, production schedule, location scouting and securing, prop, set and wardrobe identification and preparation and any other inputs required before the confirmed production dates.

Production means the process of shooting the photograph, video footage or recording the audio to be included in the Deliverable.

Proposal means any proposal, quotation or statement of works prepared by De’arry Imagesm  identifying the scope of the project and the Deliverable and detailing the price of the works.

Post-Production means the work required in editing photograph, video footage, editing the soundtrack, adding sound effects and music, adding titles and graphics, colour and exposure correction, adding special effects.

Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

Services mean all services to be provided to or sourced for Client by De’arry GR in the creation of the Deliverable as described and otherwise further defined in the Proposal.

De’arry Imagesm means the multimedia division of De’arry Global Resources.

De’arry GR means De’arry Global Resources as a body corporate.

Third Party Materials means proprietary third party materials, which are incorporated into the Final Deliverable, including without limitation music, audio, logos, trademarks, photography or illustrations.

Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

Terms of Service

1.        Proposal

1.1        Terms of Proposal

In the event this agreement is not accepted by the Client within 30 days of its submission to the Client, De’arry GR may withdraw or amend the Proposal at its discretion.

1.2       Order of precedence

In the event of any inconsistency between these Terms and the Proposal, the Proposal shall prevail to the extent of that inconsistency.

2.   Fees & Charges

2.1       Fees

In consideration of the Services to be performed by De’arry Imagesm, Client shall pay De’arry GR fees in the amounts and according to the Proposal document and the Payment Schedule in clause 2.2, and all applicable GST.

2.2      Payment Schedule

The Quotation Amount shall be payable as follows:

  • Forty percent (40%) of the total Quotation Amount shall be payable by way of a booking to secure De’arry Imagesm services on the stated date(s)
  • Thirty percent (30%) of the total Quotation Amount shall be payable as deposit prior to commencement of project
  • The remaining thirty percent (30%) shall be billed when work is completed but prior to final delivery of the Deliverables.

In case of a short notice project, the Client may receive final delivery by sending De’arry Imagesm a bank transfer confirmation evidencing the relevant funds transfer.

2.3      Invoices and collection

All invoices are due on receipt. A monthly service charge of 1.5% is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance.

Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment.

2.4     Payment channels

Only payments made to our designated accounts are recognized. However, we reserve the right to hold off services pending confirmation of payment.

Payments can also be made through:

  • Crossed cheque payable to De’arry Global Resources
  • Appropriate payment links on our website
  • Using our payment gateway: bit.ly/paydearry

2.5     Retention of title

De’arry GR reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.

All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditional upon receipt of payment in full which shall be inclusive of any and all outstanding additional charges, taxes, expenses, and fees or the costs of any changes.

3.   Changes

3.1       General Changes

Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at De’arry Imagesm’s standard hourly rate of N15,000.00 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. De’arry Imagesm may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.

3.2       Substantive Changes

If Client requests or instructs Changes that, in the reasonable opinion of De’arry Imagesm, amounts to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, De’arry Imagesm shall be entitled to submit a new and separate Proposal to Client for written approval.

Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by De’arry GR.

4.   Timeframes

4.1       Production Commencement

De’arry Imagesm will commence the provision of the Services and book a shooting date once the Client executes and returns the Proposal and pays the initial deposit.

4.2     Parties obligations as to timing

De’arry Imagesm will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal.

Client acknowledges and agrees that De’arry Imagesm’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or De’arry Imagesm’s obligations under this Agreement.

4.3     Feedback Timeframes

The Client must provide any feedback within 7 days of receiving the draft Deliverable for review and feedback, including notifying De’arry Imagesm of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice must be sufficient to identify with clarity any objection, correction, change or amendment.

5.   Reviews

5.1       Allowance for reviews

Client is allowed a maximum of 2 reviews on a project. All such reviews must be in writing, with clear expressions of expected outcome.

5.2     Changes and modification

After the second review, any further review will be deemed a change and will be billed. An exception, is where an issue stated in the review was not actioned.

A roll back to a previous edition pre-review is deemed a modification and will be billed.

6.   Rescheduling and Cancellations

6.1       Client Cancellations

Where the Client wishes to cancel any scheduled production (including but not limited to shooting, capturing or production work) it must provide at least 3 business days’ notice. The Client acknowledges that the dates for any rescheduled production will be dependent upon De’arry Imagesm’s availability.

A failure to provide notice within the required timeframe will incur a fee of 25% of the total amount quoted for the production phase. The Client acknowledges that this amount is a genuine pre-estimate of the loss that De’arry Imagesm will incur as a result of the cancellation, including loss of opportunity.

The cancellation fee(s) will be added to the total project cost and will be payable prior to the delivery of the Final Deliverable.

6.2      De’arry Imagesm Cancellations

In certain circumstances, De’arry Imagesm may cancel a scheduled production date, in which case it will contact the Client to reschedule the date.

If cancellation is due to a technical fault that results in the accidental loss or nonrecording of unique, one-off footage, De’arry GR will return the Client’s paid deposit. The Client agrees that no other claims will be made against De’arry GR, its divisions, staff, partners, associates or subcontractors.

6.3      Force majeure

Where cancellation and/or loss of footage occurs as a result of unforeseen circumstances beyond a party’s control (including but not limited to force majeure, inclement weather, death, illness, criminal activities such as theft or damage), neither party shall have any claim against the other.

7.   Client responsibilities

7.1       Communication

The Client will select up to two people within its organisation to be the main contact point for the entirety of the project. All communication, feedback and input must be directed via those nominated individuals.

7.2      Pre-production

The Client acknowledges that the Client is responsible for providing the input and/or Client Content specified in the Proposal. The Client will provide that input or Client Content within 1 week of receiving a request from De’arry Imagesm to provide it (or, if the urgency of the project requires a shorter period—that shorter period). If the Client has not provided the input or Client Content or any input before the confirmed shoot date, the project may be put on hold until De’arry Imagesm receives the necessary details.

Failure to provide the required input or Client Content on or before the deadline may, at the discretion of De’arry Imagesm, result in the Deliverable being finished “as is”. In such circumstances, the Client will still be responsible for payment of the full amount quoted in the Proposal.

Client acknowledges that Client Content shall be provided in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal.

7.3      Production

The script, location, talent, art department, catering, crew, equipment and any other items necessary for the shoot must be arranged and/or confirmed by the Client at least 3 days before the booked shoot date.

The Client is responsible for verifying any person involved in the shoot on behalf of the Client has agreed to be recorded. De’arry Imagesm recommends the use of a talent release form.

7.4     Post production

Within 1 week of a shoot, if the Client has not provided a brief or input before the commencement of post-production, the Deliverable and other project materials will be archived and a fee will be charged to retrieve it.

8.   Ownership of Copyright

8.1       Copyright in Final Deliverable

Upon receiving final payment of all monies due to it under this agreement, De’arry GR assigns all right title and interest in and to the Final Deliverable to the Client. The Client hereby grants an irrevocable, royalty-free, worldwide licence to De’arry GR the right to reproduce, publish and display the Final Deliverable in its portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverable in connection with such use.

8.2     Copyright in Creative Content

De’arry GR retains all right title and interest in and to the Creative Content except to the extent otherwise stated in the Proposal.

8.3     Third Party Materials

Each party warrants that it has the right to use any Third Party Materials supplied by it for the purposes of the project. De’arry GR may seek reimbursement of any costs incurred by it in obtaining licences to use any Third Party Materials in the Deliverable.

9.   Confidential information

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court of competent jurisdiction or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

10.   Relationship of the parties

10.1    Independent Contractor

De’arry Imagesm is an independent contractor, not an employee of Client or any company affiliated with Client. De’arry Imagesm shall provide the Services under the general direction of Client, but De’arry Imagesm shall determine, in De’arry Imagesm’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. De’arry GR and the work product or Deliverables prepared by De’arry Imagesm shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.

10.2   Agents

De’arry GR shall be permitted to engage and/or use third party contractors or other service providers as independent contractors in connection with the Services (“Production Agents”). Notwithstanding this, De’arry Imagesm shall remain fully responsible for Production Agents’ compliance with the various terms and conditions of this Agreement.

10.3   No Solicitation.

During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any De’arry Imagesm, employee or Production Agent of De’arry GR, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that De’arry GR shall be entitled to an agency commission to be the greater of, either,

  • 25% of said person’s starting annual salary with Client, or
  • 25% of fees paid to said person if engaged by Client as an independent contractor.

In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client.

De’arry GR, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.

10.4  No Exclusivity

The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by De’arry GR, and De’arry GR shall be entitled to offer and provide her services to others, solicit other clients and otherwise advertise the services offered by De’arry Imagesm.

11.   Warranties & Representations

11.1      By Client

Client represents, warrants and covenants to De’arry GR that

  • Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
  • to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
  • Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
  • Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

11.2    By De’arry GR

  • De’arry GR hereby represents, warrants and covenants to Client that De’arry Imagesm will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
  • De’arry GR further represents, warrants and covenants to Client that
    1. except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of De’arry Imagesm and/or its independent contractors,
    2. in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by De’arry GR, De’arry Imagesm shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for De’arry GR to grant the intellectual property rights provided in this Agreement, and
  • to the best of De’arry GR’s knowledge, the Final Deliverable provided by De’arry Imagesm and De’arry GR’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of De’arry GR shall be void.
  • Except for the express representations and warranties stated in this agreement, De’arry Imagesm makes no warranties whatsoever. De’arry GR explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.

12.   Indemnification/Liability

12.1    By Client

Client agrees to indemnify, save and hold harmless De’arry GR from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances De’arry GR shall promptly notify Client in writing of any claim or suit;

  • Client has sole control of the defence and all related settlement negotiations; and
  • De’arry GR provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by De’arry GR in providing such assistance.

12.2   By De’arry GR

Subject to the terms, conditions, express representations and warranties provided in this Agreement, De’arry GR agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with De’arry Imagesm’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that:

  • Client promptly notifies De’arry GR in writing of the claim;
  • De’arry GR shall have sole control of the defence and all related settlement negotiations; and
  • Client shall provide De’arry GR with the assistance, information and authority necessary to perform De’arry Imagesm’s obligations under this section.

Notwithstanding the foregoing, De’arry Media shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by De’arry Imagesm.

13.   Limitation of Liability.

The services and the work product of De’arry Imagesm are sold “as is.” In all circumstances, the maximum liability of De’arry GR, its directors, officers, employees, production agents and affiliates, to Client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the fees charged by De’arry Imagesm under this agreement. In no event shall De’arry GR be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by De’arry Imagesm, even if De’arry Imagesm has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

14.   Term & Termination

14.1    Agreement Term

This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered. This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:

  • becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
  • breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.

15.   Compensation

In the event of termination, De’arry Media shall be compensated for the Services performed through the date of termination in the amount of

  • any advance payment,
  • a prorated portion of the fees due, or
  • hourly fees for work performed by De’arry Imagesm or De’arry GR’s agents as of the date of termination,

whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.

15.1    Termination by Client

In the event of termination by Client and upon full payment of compensation as provided herein, De’arry GR grants to Client with title to those Deliverables provided to, and accepted by Client as at the date of termination.

15.2   Confidential Information

Upon expiration or termination of this Agreement:

  • each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and
  • other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

16.   General

16.1    Modification/Waiver

This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that De’arry Imagesm’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by surface/electronic mail or WhatsApp in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

16.2   Notices

All notices to be given hereunder shall be transmitted in writing either by surface or electronic mail with confirmation of receipt or by WhatsApp, and shall be sent to the addresses identified below, unless notification of change of address is given in writing.

Notice shall be effective upon receipt or in the case of email and WhatsApp upon confirmation of receipt.

16.3   No Assignment

Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.

16.4   Force Majeure

De’arry GR shall not be deemed in breach of this Agreement if De’arry Imagesm is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of De’arry Imagesm or any local, state, federal, national or international law, governmental order or regulation or any other event beyond De’arry GR’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, De’arry Imagesm shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

16.5   Governing Law and Jurisdiction

The laws of the Federal Republic of Nigeria govern this Contract.

16.6   Severability

Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

16.7   Headings

The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

16.8   Integration

This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document and the Proposal.

By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.