TERMS AND CONDITIONS
Introduction
These are the terms and conditions which apply to the contract between Photographer London Ltd with its registered office at Flat 412, Royle Building 31 Wenlock Road, London N1 7SH, company number 12110735 (“Supplier”) and the client to whom the Supplier contracts to supply the Services (“Client”).
Definitions
Capitalised terms have the following meanings in these terms and conditions:
Applicable Laws: all applicable laws, regulations and codes of conduct
Client’s Venue: the Client’s premises or any other venue arranged by the Client
“Consumer”: an individual acting for purposes which are wholly or mainly outside that person’s trade, business, craft or profession
Materials: photographs, videos and other information which the Supplier agrees to supply to the Client
Quote: the Supplier’s quote to which these terms and conditions apply
Services: photography, video and any other services which the Supplier agrees to supply to the Client
In writing: all forms of visible reproduction in permanent form (including email unless otherwise stated).
Supply of Services Generally
Subject to the terms of this agreement, the Supplier shall supply the Services with reasonable skill and care. Notwithstanding the foregoing, the Supplier does not warrant that the Services will be uninterrupted or error-free.
Unless otherwise agreed in writing, the Supplier is not obliged to supply any Services requested by the Client which are in addition to those specified on the Quote. If the Supplier does so agree, it is entitled to charge for such Services at its then-standard rates.
The Client shall:
promptly provide the Supplier with such information and documents as it may reasonably request for the proper performance of the Services;
comply with the Supplier’s reasonable instructions and provide reasonable co-operation to the Supplier in supplying the Services; and
comply with all Applicable Laws and not infringe any third party rights with respect to this agreement and the Services.
The Client shall comply promptly with its obligations under this agreement. The time for performance of any obligation by the Supplier is postponed by the amount of any Client delay which is relevant to such obligation.
Client’s Venue
Insofar as the Services are to be performed at the Client’s Venue, the Client:
is responsible for procuring all necessary consents and licences;
shall take reasonable steps to:
ensure that such locations are safe and suitable locations for the Supplier to provide its services;
provide access for the Supplier’s staff; and
procure the safety of the Supplier’s staff and equipment; and
shall be liable for any damage caused to the Supplier’s equipment by the Client or third parties.
The Client acknowledges that the Supplier is entitled to withdraw from any Client’s Venue and suspend any Services immediately if the Supplier has any concerns as to the safety or security of its staff or equipment. The Client is responsible for any consequent costs.
The Supplier shall take reasonable steps to check equipment is in order before filming but cannot guarantee that technical difficulties will not arise or that they can necessarily be resolved quickly or on the same day. The Suppler shall not be liable in such case.
For the avoidance of doubt, the Supplier is only required to supply the Services at the specified Client’s Venue on the agreed date. Any cancellation or change is subject to the Supplier’s agreement in writing and to payment of any applicable cancellation fees (as provided for below).
Any request by the Client to extend the time of the Supplier’s attendance at the Supplier’s Venue shall be subject to the agreement of the Supplier and, unless otherwise agreed, to an additional fee calculated pro rata based on the originally scheduled duration plus an administrative fee of £45.
Delivery of Materials by the Supplier
The Supplier shall use its reasonable endeavours to meet any deadlines agreed with the Client for delivery of Materials but does not guarantee that they will be achieved.
All Materials supplied by the Supplier shall be deemed to be in final form. The Supplier shall not be bound to make any further edits to the Materials unless otherwise agreed in writing and, if so, subject to the Supplier’s additional editing fees.
The Client acknowledges that all Materials will be supplied only in digital format in accordance with any specifications stated in the Quote.
Unless otherwise specified in the Quote, photographs shall be made available via an online gallery for the Client to download and the Supplier shall be entitled to permanently delete them any time after 7 days following the Supplier’s notification to the Client that they are available.
Payment
The Client shall pay the fees to the Supplier in the amounts and within the periods specified in the Quote. If no date is specified in the Quote, invoices must be paid within 14 days of delivery of Materials or of cancellation by the Supplier as applicable.
If for any reason the Client cancels any Services whether to take place at the Client’s Venue or the Supplier’s premises, the Client shall pay the cancellation fees specified in the Quote. If no cancellation fees are specified in the Quote, the following cancellation fees shall apply:
cancellation within three days before the agreed date: 100% of the agreed fee;
cancellation more than three days before the agreed date: 50% of the agreed fee.
The Client shall pay the Supplier’s fees without any withholding, deduction, counterclaim or setoff.
Supplier’s fees are exclusive of VAT, which shall be payable in addition by the Client.
The Supplier may charge interest on overdue sums (both before and after judgment) at the rate for the time being that would be applicable if the debt were a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998.
Suspension / Termination
The Supplier is entitled to suspend or terminate this agreement at any time by giving immediate notice in writing to the Client if any Supplier’s fees are unpaid.
Without prejudice to any other right or remedy available to either party under this agreement or at law, either party (the ‘Innocent Party’) may terminate this agreement at any time and with immediate effect upon giving notice to the other party if:
the other party has committed a material breach of this agreement and has failed to remedy such breach within thirty (30) days of receipt of a notice in writing from the Innocent Party describing the breach and requiring its remedy; or
the other party suffers, or threatens to suffer, any form of bankruptcy, insolvency, receivership, administrative receivership, administration or is unable to pay its debts or makes any arrangement with creditors or applies for protection from creditors or passes a resolution for its winding up or ceases, or threatens to cease, to carry on business or any event occurs which is substantially similar to any of the foregoing.
On termination of this agreement for any reason:
accrued rights and liabilities shall be unaffected; and
all terms shall survive which are expressed or intended to survive termination as well as any terms necessary for the interpretation or enforcement of this agreement.
Limitation of liability and indemnity
Any provisions in this agreement excluding or limiting liability will apply regardless of the form of action, whether under statute, in contract or tort including negligence or otherwise. Such provisions apply to and may be enforced by the relevant party’s directors, officers, employees, subcontractors, agents and affiliated companies as well as to the party itself and those parties will have the benefit of such provisions in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this agreement in any way excludes or restricts either party’s liability for negligence causing death or personal injury or for fraudulent misrepresentation or for any liability which may not legally be excluded or limited.
The following clauses apply only if the Client is a Consumer:
The Supplier shall not be liable for any loss or damage in circumstances where:
there is no breach of a legal duty owed to the Client by the Supplier;
such loss or damage was not reasonably foreseeable (meaning it was not an obvious consequence of the Supplier’s breach or was not contemplated by the Supplier and Client when they entered into this contract);
such loss or damage is caused by the Client, for example by not complying with this agreement; or
such loss or damage relates to a business of the Client.
The Client will be liable for any reasonably foreseeable loss or damage suffered by the Supplier arising from the Client’s breach of this agreement (subject to the Supplier’s obligation to mitigate any losses).
The following clauses apply only if the Client is not a Consumer:The total aggregate liability of the Supplier of any kind (including for negligence) with respect to the Services shall in no circumstances exceed the total fees paid to the Supplier under this agreement.
The Supplier shall not in any event be liable for any
economic losses (including, without limit, loss of revenues, profits, contracts, business or anticipated savings);
loss of goodwill or reputation;
special, indirect or consequential losses; or
damage to or loss of data
(even if the Supplier has been advised of the possibility of such losses).
The Supplier excludes all terms, whether imposed by statute or by law or otherwise, that are not expressly stated in this agreement.
The Client shall indemnify the Supplier against all claims and liabilities directly or indirectly related to the Supplier’s breach of this agreement.
Intellectual Property Rights
The Client licenses the Supplier to use in connection with the Services any trade marks, branding and materials (“Client Materials”) supplied by the Client to the Supplier for such purposes. The Client warrants that the Client Materials do not infringe any third party intellectual property rights.
Unless otherwise agreed in writing, for example by reference to a “buyout” in the Quote, the Supplier retains ownership of the copyright and other intellectual property rights in the delivered Materials and, subject to full and timely payment by the Client of all Supplier’s fees relating to the relevant Services, the Supplier grants to the Client a perpetual, worldwide, royalty-free licence to use the delivered Materials (for the avoidance of doubt, excluding unused Material such as unused video footage). For the avoidance of doubt, in such case the Supplier is entitled to use the delivered Materials howsoever it wishes including to promote its own services in showreels, case studies, brochures on the Supplier’s website and elsewhere and to sub-licence its subcontracted videographer / photographer to do likewise.
If the parties agree to an assignment of intellectual property rights, for example by reference to a “buyout” in the Quote, the Supplier hereby assigns to the Client ownership of the copyright and other intellectual property rights in the delivered Materials subject to full and timely payment by the Client of all Supplier’s fees relating to the relevant Services and, for the avoidance of doubt, excluding unused Material such as unused video footage.
The Supplier asserts its right to be identified as the author of the Materials. The Client undertakes to include in the form specified by the Supplier a prominent credit and link to the Supplier’s website on any webpage (including social media) on which it displays the Material.
Confidentiality
Each party shall keep in confidence any information in any form (including oral) of a confidential nature relating to the other party obtained in connection with this agreement and shall not without the prior written consent of such other party use that information other than for the purposes of this agreement or disclose it to any person other than its personnel who need to know the information for the purposes of this agreement.
This clause shall not apply to:
information which becomes public knowledge has been published other than through a breach of this agreement;
information lawfully in the possession of the recipient before the disclosure took place;
information obtained from a third party who is free to disclose it; and
information which a party is requested to disclose and if it did not could be required by law or regulation or competent authority to do so.
This section of the agreement shall survive termination.
Data Protection
The Supplier shall comply with the GDPR Addendum at Appendix 2.
General
This agreement (and any document incorporated herein) constitute the entire agreement between the parties with respect to its subject matter and supercedes any previous communications or agreements between the parties in relation to such matters. Both parties acknowledge that there have been no misrepresentations and that neither party has relied on any pre-contractual statements. Liability for misrepresentation (excluding fraudulent misrepresentation) relating to the terms of this agreement is excluded
Neither party is liable for failure to perform or delay in performing any obligation (excluding payment) under this agreement if the failure or delay is caused by any circumstances beyond that party’s reasonable control including third party telecommunication failures.
Any notice required by this agreement to be given by any party in writing may be given by hand or sent (by special delivery within the UK or by international signed for post outside the UK) to another party at its registered office or such other address as that party may notify to the other party for this purpose from time to time or, unless stated otherwise, by email subject to the email being acknowledged in like manner.
No amendment or variation of this agreement shall be effective unless in writing (not email), expressed to be an amendment to this agreement and signed by a duly authorised representative of each of the parties.
Neither party may assign any of its rights or obligations under agreement without the prior consent in writing of the other not to be unreasonably withheld or delayed. The Supplier is entitled to subcontract its obligations under this agreement without consent and to change the originally nominated subcontractor for any reason.
The failure of a party to exercise or enforce any right under this agreement shall not he deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
If any provision of this agreement is held to be unlawful, void or unenforceable in whole or in part, this agreement shall continue in force in relation to the unaffected provisions.
Save insofar as expressly provided otherwise in this agreement, no third party may enforce any clause in this agreement under the Contracts (Rights of Third parties) Act 1999.
The relationship of the parties is that of independent contractors. Except as otherwise stated in this agreement, nothing in this agreement shall constitute the parties as partners, joint venturers or co-owners, or constitute any party as the agent, employee or representative of the other(s), or empower any party to act for, bind or otherwise create or assume any obligation on behalf of the other(s), and no party shall hold itself out as having authority to do the same.
This agreement shall be governed by the laws of England and each party hereby submits to the exclusive jurisdiction of the English courts.
APPENDIX 1
GDPR ADDENDUM
Definitions
In this Agreement:
“controller”, “processor”, “data subject”, “personal data” and “processing” have the same meanings as set out in Data Protection Laws;
“Data” means any personal data processed in connection with the Services;
“Data Protection Laws” means all applicable data protection and privacy laws, regulations and guidance including Regulation (EU) 2016/679 (the “General Data Protection Regulation” or “GDPR”) and guidance or codes of practice issued by the Information Commissioner from time to time; and
“Subjects” means people attending Client events.
Data processing
The following are the details of the processing to be carried out by the Supplier in relation to Data:
Subject matter: Any Subjects’ Data provided or made available to the Supplier including in photographs or videos.
Duration of the processing: The period of the Services.
Nature and purpose of the processing: To enable the Supplier to supply the Services to the Client.
Type of personal data: Subject images and other information.
Categories of data subject: Subjects.
Obligations and rights of the controller: See below.
The Supplier shall:
process the Data in accordance with Data Protection Laws (and nothing in this agreement relieves the obligations of the Supplier of its own direct responsibilities and liabilities under Data Protection Laws);
process the Data only so far as is necessary for the purpose of performing the Services;
process the Data only on written instructions from the Client (including this agreement) unless the law requires otherwise in which case the Supplier shall inform the Client before processing;
not disclose Data to anyone other than its employees or agents except insofar as permitted in this agreement and shall ensure that those persons are subject to an obligation of confidentiality in relation to the Data;
maintain technical and organisational security measures (including where applicable in relation to encryption, pseudonymisation, resilience of processing systems, backing up personal data in order to be able to reinstate the system and testing) sufficient to comply with the obligations imposed on the Client under Data Protection Laws;
not subcontract any processing of Data without the Client’s prior written consent and the Client shall be deemed to consent to processing by any sub-contractor provided by the Supplier to perform the Services;
take reasonable steps to assist the Client in complying with the Client’s own obligations under Data Protection Laws including:
responding to subject access requests;
keeping Data secure;
notifying data subjects about personal data breaches;
carrying out any data protection impact assessment (”DPIA”); and
consulting with the relevant supervisory authority where applicable following a DPIA;
viii)on termination of this agreement, at the Client’s option either delete or return all Data to the Client, unless the Supplier is legally required to retain the Data;
make available to the Client all information necessary:
to demonstrate compliance with its obligations relating to Data both in this agreement and under Data Protection Laws; and
to submit and contribute to audits carried out by the Client or an auditor appointed by the Client and the Supplier agrees that the Client shall have a right during this agreement and for six years thereafter on reasonable notice to inspect and take copies of all information comprising Data or relating to its obligations concerning Data; and
immediately inform the Client if in its opinion a Client instruction does not comply with Data Protection Laws.