Terms and Conditions for the Supply of Services
The following Terms and Conditions (the Terms) are the Contract of Services between Tim Emmerton trading as Tim Emmerton Photography of Silverwood, Withnell Fold, Chorley, Lancashire, PR6 8BB https://timemmerton.co.uk, with the email address: tim@timemmerton.co.uk (We, Us, the Business) and you, (Client, You) collectively, (the Parties).
These Terms and Conditions are incorporated into the Contract and contain important information about your legal rights.
By purchasing the Services, You accept and agree to be bound by the Terms.
These Terms supersede any previously issued terms, understandings and arrangements, whether in writing or oral in respect of its subject matter.
Each party acknowledges that it has not entered into the Contract/Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract/Agreement or any documents entered into pursuant to it.
DEFINITIONS
In these Terms the following definitions apply:
Businesses Standard Post Production Process:
means colour correction, exposure balancing, colour grading and cropping/straightening and exported in JPG format with sRGB colour space at 300dpi.
Client :
means any person who uses the Services from the Business as specified in the Schedule.
Contract/Agreement:
means the agreement between the Business and the Client for
the supply and purchase of Services incorporating these Terms.
Data Protection Laws:
means, as binding on either party or the Services:
the GDPR;
the Data Protection Act 2018; and
any laws that enact, replace, extend, re-enact, consolidate or amend any of the foregoing.
Date:
means the date(s) on which the Photo Shoot will take place.
Deliverable Images:
means images selected by the Business from the full range of digital negatives created at the Photo Shoot. These images will be edited in accordance with the Businesses Standard Post Production Process. These images may be supplied to the Client with a watermark that will be removed by the Business once payment is received in accordance with Clause 3.
Force Majeure:
means an event or sequence of events beyond a party's reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, disease or pandemic, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, but excluding the Client’s inability to pay or circumstances resulting in the Client’s inability to pay.
Intellectual Property Rights:
means all intellectual and industrial property rights, including without limitation, patents, rights in know-how, trademarks, registered designs, model unregistered design rights, unregistered trademarks and copyright (whether in drawings, plans specification, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world.
Location:
means the location of a photo shoot as specified in the Order Acknowledgement.
Order and Order Acknowledgement:
means the Client will place the Order by phone, email text or through the Website as an offer in the formation of a contract and the Business will supply an Order Acknowledgement by email, text or by automated response through the Website as the acceptance.
Photographer:
means Tim Emmerton or the appointment of another photographer by Tim Emmerton.
Photo Shoot:
means the photo shoot where the Photographer will take photographs and / or images or footage from a drone or unmanned aircraft for the Client.
Price:
means the amount payable as specified in the Order Acknowledgement.
Services:
means the services that the Business supplies.
Time:
means as agreed between the Parties.
Website:
means https://timemmerton.co.uk
1. APPLICATION
1.1 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing by Us.
1.2 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
1.3 Where the phrase ‘in writing’ is used in this Agreement, it shall be understood as including emails, texts and WhatsApp messaging.
2. BOOKING
2.1 The Date is guaranteed automatically once the Business sends the Order Acknowledgement to the Client. At this point, a binding contract exists between the Parties.
2.2 The Services will be provided as agreed between the Business and the Client.
2.3 The Business reserves the right to request a deposit from the Client. In the event that such a deposit is paid by the Client, it will be deducted from the Price.
3. PAYMENT
3.1 For new Clients, payment is due in advance or upon receipt of watermarked images from the Business. For existing Clients with a credit account (terms & eligibility apply), payment is due 30 days after the date of the invoice provided by the Business to the Client unless otherwise agreed, varied and specified in the Order Acknowledgement by the Business.
3.2 Payment for any additional images or services must be made at the time of Order.
3.3 All payments should be made by Bank Transfer (BACS) to the Bank Account specified in the Schedule.
3.4 Where payment is to be made by a third party, the Client acknowledges that they shall remain responsible for any balance outstanding in respect of the Contract.
3.5 Late payments will attract an administration charge of £50.
3.6 Time for payment is of the essence. If the Client fails to make any payment on the due date without prejudice to any other right or remedy available to the Business, the Business shall be entitled to:
3.6.1 not perform or suspend any further Services to the Client (or any part of the Services);
3.6.2 require the Client to pay in advance for any Services (or any part of the Services) which have not yet been performed;
3.6.3 appropriate any payment made by the Client to such of the Services (or the services supplied under any other contract between the Client and the Business) as the Business may think fit (notwithstanding any purported appropriation by the Client); and
3.6.4 charge the Client interest, without limiting its other rights, and
3.6.5 interest shall accrue on a daily basis at the rate of 8% above the base rate of Clydesdale Bank plc and apply from the due date for payment until actual payment in full, whether before or after judgment, subject to a minimum of:
for a debt less than £1,000, the sum of £40; or
for a debt of £1,000 or more, but less than £10,000, the sum of £70; or
for a debt of £10,000 or more, the sum of £100.
4. PRIVACY AND PERMISSIONS
4.1 We agree to respect Your privacy and take all reasonable steps to comply with the requirements of the EU General Data Protection Regulations (GDPR).
4.2 We may use photographs for promotional purposes with images appearing on our Website, e-mails, social media, in Our printed materials produced for promotional purposes including leaflets, posters and in any materials sent out to prospective customers. We may also use photographs to enter trade competitions. If You would like further information or to tell Us that You do not consent to images being used in ways outlined above, please contact Us. The Business reserves the right to charge an administration fee for processing any such requests.
5. PHOTOGRAPHER DISCRETION
5.1 The Photographer is granted artistic discretion in relation to the all aspects of the Photo Shoot. Although every effort will be made to comply with the Client’s requests, the Photographer’s judgement regarding the location, lighting, staging, framing, poses and number of photographs taken shall be deemed correct and not subject to dispute.
5.2 Whilst the Photographer shall endeavour to fulfil the Client’s requests, the Photographer cannot be held responsible for non-availability of subjects or adverse weather conditions or changes in ambient/natural light that may delay or render impossible the progress of proceedings thus preventing the coverage of some shots and as such the Photographer cannot guarantee any specific picture, background or arrangement.
6. COOPERATION AND CONSENT
6.1 The Client is responsible for the cooperation of all persons involved with the Photo Shoot.
6.2 The Client is responsible for securing any relevant permissions required for the safe and lawful execution of the Services. In the event that the Services will include the use of a drone or unmanned aircraft, it is particularly incumbent upon the Client to ensure that any person that may be affected by the Services is aware and has no objection to the Services being carried out. The Client understands that should there be any such objections and the Photographer is prevented from obtaining images or video through the use of a drone or unmanned aircraft, the Business reserves the right to invoice for such Services in full.
6.3 The Photographer will not tolerate verbal or physical abuse.
6.4 In the event of an unacceptable degree of misconduct, or the equipment of the Photographer is damaged, it will result in the Photographer ceasing to take any more photographs and the Photographer will not be responsible for any photographs not taken. The Client understands that in such event, the Business reserves the right to invoice for such Services in full and the Client will be fully liable for all damage caused to equipment, including the cost of repair or (where repair is not reasonably possible) replacement.
7. OWNERSHIP
7.1 All digital negatives / RAW files and all Intellectual Property Rights associated with such digital negatives / RAW files will be retained by the Business and will remain the property of the Business at all times.
7.2 The Business will supply the Client with Deliverable Images from the Photo Shoot. The quantity of images is at the discretion of the Business. Subject to clause 7.3, all Intellectual Property Rights associated with the Deliverable Images shall remain the property of the Business.
7.3 Subject to clause 7.4, once payment is received by the Business in accordance with clause 3, the Business grants the Client a full licence for commercial/marketing use, in any media, for so long as the Intellectual Property Rights subsist.
7.4 The Client is not permitted to resell or donate the Deliverable Images outside of the normal scope of its operations or to third parties and will be considered as a breach of the Intellectual Property Rights of the Business.
7.5 Subject to clause 4.2, the Business reserves the right to use any images, including Deliverable Images, from the Photo Shoot for marketing, publicity or promotional purposes.
8. EDITING
8.1 We will edit all images in accordance with Businesses Standard Post Production Process together with any additional requirements as per the original quotation/order acknowledgment.
8.2 You can request two re-edits of the images and any further re-edits will be subject to an additional cost.
8.3 Any additional changes required by the Client, beyond the scope of our Businesses Standard Post Production Process or not included in the quotation/original order acknowledgement such as personal features, colours, adding/removing of people, will be subject to an additional cost.
8.4 Due to a variety of lighting conditions and the limitations of digital sensors, some colours may alter from the percieved reality and/or throughout a set of photographs.
8.5 Any image manipulation beyond the Businesses Standard Post Production Process, including but not limited to exposure blending, multiple layer photoshop work, object removal (including dust, scratches, blemishes etc), path clipping and skin retouching are available at additional cost if not expressly included in the quotation/order acknowledgment.
9. FLIGHT RULES AND SAFETY
9.1 For a Photo Shoot which involves the use of a drone or unmanned aircraft, the Business is subject to the rules and regulations imposed by UK Air Law and the Civil Aviation Authority. Specific regulations regarding Unmanned Aircraft Operations in UK Airspace apply to all flights undertaken. In the interests of flight safety, and on behalf of the Business, the pilot of the drone or unmanned aircraft is the sole judge as to which rules and regulations are applicable.
9.2 In the event of cancellation or early termination of flights of a drone or unmanned aircraft due to weather, the Business will endeavour to re-assign the Services to a day/s of suitable weather, subject to equipment and crew availability. Whilst the Business will endeavour to advise of the likelihood of unsuitable weather, the Business accepts no responsibility, whether consequential or otherwise, for delays or cancellations due to weather.
When a booking for Services includes the use of a drone or unmanned aircraft, the Business reserves the right to charge for:
(i) a no fly day rate details of which can be made available on request, and
(ii) costs already incurred on behalf of the Client.
This right, unless other written agreement is reached at the time of booking, is regardless of whether weather conditions permit the proposed operation. The pilot alone shall decide on the suitability of the weather for safe flight for any operation.
10. LIMITATION OF LIABILITY
10.1 If you fail to comply with the terms of this Agreement, the Services will no longer be available to you without further notice.
10.2 We will not be liable for any loss or damage whatsoever whether direct, indirect, consequential or incidental, actual or anticipated of any the following:
10.2.1 profit;
10.2.2 data (or corruption of data due to viruses or any other technological error or fault);
10.2.3 contact;
10.2.4 opportunity;
10.2.5 reputation or goodwill.
10.3 We do not make any representations or warranties of any kind, whether express or implied, about the completeness, accuracy, reliability, suitability or availability of the Website and Services, the information or merchantability of any part, feature or content contained on the Website for any particular purpose. This includes any links or references to third-party websites.
10.4 Any other provision in this Agreement does not attempt to exclude or limit in any way, our liability for the following:
10.4.1 death or personal injury caused by our negligence;
10.4.2 fraud or fraudulent misrepresentation;
10.4.3 wilful misconduct;
10.4.4 any other matter for which it would be illegal for us to exclude or attempt to exclude our liability.
10.5 Any directions issued to the Client during the Photo Shoot are deemed to be at the Client’s own risk. The Photographer cannot be held responsible for any personal accidents during the Photo Shoot.
11. INSURANCE
11.1 We will maintain Public Liability and Commercial Owners and Operators of Unmanned Aerial Systems insurance at all times.
11.2 In the unlikely event of a total photographic failure or cancellation of this Agreement by either party or in any other circumstance, the liability of one party to the other, shall be limited to the total value of the Agreement.
12. FORCE MAJEURE
The due performance of this contract is subject to alteration or cancellation due to a Force Majeure event.
13. CONDUCT AND COMPLAINTS
13.1 It is the responsibility of the Client to ensure that all persons involved in the Photo Shoot co-operate on the Date.
13.2 All complaints shall be raised by the Client directly to Us in writing within 14 days of the occurrence which gives rise to the complaint. We will consider the complaint and shall provide a response to the Client within 14 days of receipt of the complaint.
14. DISPUTES
14.1 Subject to Clause 13 above, the Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
14.2 The Client recognises that any breach or threatened breach of the Contract may cause Us irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to Us, the Client acknowledges and agrees that We are entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
15. CANCELLATION & POSTPONEMENT
15.1 Where We must cancel the Contract, due to circumstances beyond our control, the full amount of any payments received will be returned to the Client.
15.2 Should the Client wish to cancel this Contract at any time, notice of cancellation must be given in writing to Us.
15.3 In the event that the Client cancels the Contract, the Business will work with the Client to arrange a new Date and / or Time but the Client accepts that this may not be possible within the desired timeframe.
15.4 In the event that the Client cancels the Contract, the Business reserves the right to charge for its Services either in full or a percentage of lost earnings thereof (see 15.7) and will submit an invoice to the Client which is due for payment in accordance with Clause 3.
15.5 Once the Client provides all the details required to complete the booking in any format including verbal, this is considered to constitute Confirmation of Booking.
15.6 Once the Client has made a booking for a specific time and date and this date/time has been Confirmed, The Business will not accept any other work from other clients for those times and dates;
15.7 As a result, once a booking is Confirmed, if it is subsequently cancelled or postponed, a cancellation fee will be charged to the client according to the following schedule:
(i) When a client cancels photography within less than 7 business days of any confirmed date, a fee of 50% of the booked time rate will be charged;
(ii) When a client cancels photography within less than 3 business days of any confirmed date, a fee of 75% of the booked time rate will be charged;
(iii) When a client cancels photography within less than 1 business days of any confirmed date, a fee of 100% of the booked time rate will be charged;
(iii) In addition to this cancellation fee, the client will be charged for any expenses already incurred by The Business.
15.8 If The Business – with the agreement of the client – cancels a shoot due to inclement weather/lighting conditions or any other reason beyond The Business’ control and the client is unable or unwilling to arrange or agree a suitable new date within either a reasonable and mutually agreed timescale OR a maximum of 1 calendar month, then the client will be liable to pay 50% of the booked time rate plus any expenses already incurred by The Business.
15.9 It is The Client’s responsibility to secure permissions for access to sites, properties or venues and that those venues should be ready for photography. If The Business is unable to fulfil or complete The Booking because The Client has not secured the required permissions or preparations, The Business reserves the right to charge The Client the full booked time rate plus any expenses already incurred.
16. VAT
All prices quoted are not subject to VAT.
17. PERFORMANCE
The Services shall be deemed performed on completion of the performance of the Services as specified in the Order Acknowledgement.
18. SEVERANCE
18.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
18.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.