TERMS AND CONDITIONS OF COMMISSIONING AND REPRODUCTION OF PICTURES FROM BARBARA LEATHAM PHOTOGRAPHY

 

These Terms and Conditions are the standard terms of engagement for Photography Services from Barbara Leatham t/as Barbara Leatham Photography of 11 West End, Tilshead, Salisbury, Wiltshire, SP3 4SG

Definitions

In these terms and conditions, unless the context otherwise requires, the following expressions have the following meanings: 

“agreement/contract”	Means the agreement between the parties which shall be deemed to incorporate these terms and the terms in any booking form or shoot confirmation.
"booking form or shoot confirmation"	Means the document that contains the particulars of the booking, such as parties, date venue & price.
"images"	Means all photographs, prints, transparencies, images, negatives, digital scans, digital files, design, artwork, montages, drawings, engravings and/or any other photographic product, or other product comprising or containing reproduction of any form of photographic Image, and which has been created by the Photographer.
"Order"	Means any request, order, commission, or instruction by or on behalf of the Customer, for creation of Image by the Photographer.
“parties”	Means Both Barbara Leatham Photography and the Customer
"price"	Means the price for an Order as set out on a Booking Form
"the Photographer "	Means Barbara Leatham trading as Barbara Leatham Photography
“reproduction”	Includes any form of publication, or copying of the whole or part of any picture, and whether or not altered by printing, photography, slide projection (whether or not to an audience), xerography, artist's reference, artist's illustration, layout or presentation, electronic or mechanical reproduction or storage by any other means.
“services”	Means the photography services set out on the booking form to be provided to by Barbara Leatham Photography to the Customer under the terms of the agreement.
“website”	Means our website www.BarbaraLeatham.co.uk on which we offer our services
“writing”	Includes electronic mail and comparable means of communication.
“you/your"	Means the person/company (including their employees, agents or assigns), identified as the customer on the booking form.

 

The Contract

Any quotation given by the photographer in response to an order shall not constitute an offer and is only valid for a period of 30 days from its date of issue. 

It is agreed that the terms set out on the Booking Form and in these Terms & Conditions constitutes the total agreement made between the parties and that no variation or modification of this contract shall be effective unless agreed by both parties in writing.

Marketing and other descriptive matter relating to services are illustrative only, and do not form part of the contract. You agree that, in placing an order, you have not relied on any representation or statement by the Photographer that is not set out in the contract.

A contract between the parties will not be formed (start date) until The Photographer sends you confirmation, in writing, that the booking fee payment has been accepted and the date and time of the shoot has been reserved.

These terms & conditions apply to the contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

No addition, alteration, substitution or waiver of these terms and conditions will be valid unless expressly accepted in writing by the Photographer or a person authorised to sign on their behalf.

Any alterations made to the booking by you, once details have been confirmed, may only be made at the discretion of the photographer. If The photographer is unable to accommodate alternative arrangements (such as the change of date or venue) the contract will be considered cancelled and charges will be applied as detailed in the Cancellation section below.

Photography Services

Services specific to this contract will be outlined in the booking form or shoot confirmation that accompanies these terms and conditions.

The Photographer shall provide to you the services; and perform the services with a reasonable level of skill and care in accordance with a degree of skill, diligence, prudence and foresight which, as at the relevant time, would reasonably be expected from a skilled and experienced photographer seeking in good faith to comply with its contractual obligations.

Standard Editing includes correcting levels, colour balance, and general tidying up of the chosen image(s). 

Beyond Standard Editing includes advanced digital manipulation, cutting out content or backgrounds, compositing and shall be charged at £40.00 per hour; with a minimum of one hour being charged.

You must check with the Photographer what editing will be included in the cost of the shoot.

PLEASE NOTE- Once images have been viewed by the Customer, any additional editing or postproduction shall be charged at £40.00 per hour with a minimum of one hour being charged.

The Photographer shall be entitled to sub-contract their obligations under an Order at their discretion

In the event of cancellation by the Photographer, or in the highly unlikely event of total photographic failure, the photographer´s liability shall be limited to a full refund of any deposits and fees paid. Re-shoots may be arranged if practicable but the photographer will not be responsible for any further costs.

The photographer will endeavour to contact other photographers in the unlikely event that he/she is unable to attend your booking. However, it may prove difficult or impossible to find a skilled replacement photographer at short notice or at the same price.

Creative Licence

The Photographer shall be granted artistic license in relation to the poses photographed and the locations used. Although every effort will be made to comply with your requirements, the Photographers’ judgment regarding the location, poses and number of photographs taken shall be deemed correct. This also includes post-production decisions, such as images presented in black and white, or in a particular style.

 For bookings involving a church ceremony or at certain other venues, the photographer is limited by the guidelines of the ceremony official or the venue management. You agree to accept the technical results of their imposition on the photographer. Negotiation with the officials for moderation of guidelines is your responsibility. The area from which the Photographer is able to cover the ceremony may not be their choice and the Photographer cannot accept responsibility for any obstructed view should this be the case.

Whilst the Photographer shall endeavour to fulfil all of your requirements, they cannot be held responsible for non-availability of subjects or adverse conditions which may delay the progress of proceedings, preventing the coverage of certain specified shots.

The Photographer will perform a standard amount of retouching to take the photographs to a quality which they consider to be appropriate. They will not take any instructions from you specifically related to retouching.

Image Reproduction

Owing to photo chromatic anomalies caused by a combination of certain dyes and Images, especially in man-made fibres; it is sometimes impossible to record on camera the exact colour of Images, as perceived by the human eye. When processing images, the Photographer will endeavour to achieve a pleasing overall colour balance, based on natural flesh tones.

It is understood that some colours may not remain consistent throughout a set of photographs owing to variations in lighting conditions. It is also understood that all photographic printing is undertaken within the technical limitations of the process, and that colour may not be identical over the whole range within a subject. The colour balance of prints made at different times, or in varying sizes, may also be variable.

Due to the limitations of computer monitors, it is understood that images may appear differently according to the specification of each monitor, and that prints may not match images rendered on any particular computer monitor.

Where images are made available for use on a DVD player, reasonable steps are taken to ensure compatibility, but DVD discs may not play on all DVD players, particularly older models.

All print and presentation sizes quoted are approximate, and subject to the discretion of the Photographer.

Session Policies

Under 18’s must be accompanied by their parent or legal/court-appointed guardian.

If you arrive late you may be required to forfeit some elements of your session.

Viewing & Delivery of Images

All images for viewing are chosen by the Photographer and will be delivered as digital e-proofs via their website.

Access to proofs and finished images is available for four (4) weeks. If you have not reviewed or downloaded your images within this timeframe you may incur additional charges for the link to be reactivated and resent to you.

Printed contact sheets will only be supplied to the client if agreed so beforehand and will incur a charge for their production.

Price & Payment

Prices and payment dates specific to this Contract will be outlined on the Booking Form.

All prices listed on the website are correct at the time of publication however the Photographer reserves the right to alter these in the future.  They also reserve the right to alter the Services available for sale on the website and to discontinue any service.

The price as stated in the contract does not include value added tax (“VAT”).  All payments are due in pounds sterling and should be made by BACS/Faster Payment. Bank details are on all invoices.

Unless otherwise agreed a booking fee of at least 30% off the total contract price is payable to confirm the booking. The balance will be paid as per the payment schedule on the booking form.

For family shoots and workshops, payment in full is required before the date of the shoot or workshop.

Additional charges may be applied for travel, accommodation and subsistence depending on the location of the event and the term of this agreement.  All additional charges will be agreed with you in advance.

Any queries relating to an invoice must be received within seven (7) days from the date of the invoice. Until a query is resolved you remain liable to pay the undisputed part of an invoice within the original timescale detailed on it. 

The Photographer reserves the right to withhold the provision of any Images created for you, until payment has been made and received in full.

If payment of the price or any part thereof is not made by the due date, the Photographer may:

• Cancel the contract or suspend any further provision of the services to you with immediate effect. Any such period of suspension shall be disregarded for the purpose of contractual time limits previously agreed for the completion of the services,
• Charge interest at the rate of 10% per annum on the unpaid amount. 
• Apply a charge of £10 (to cover administrative expenses and not as a penalty) per reminder for overdue payment submitted to you. The Photographer shall be entitled to submit such reminders on a weekly basis once the fees have become overdue.
• Seek to recover all costs reasonably incurred by the Photographer in collecting payment of any overdue invoices from you.

 

Travel Costs

The Photographer will charge mileage at 45p per mile if the session is more than 10 mile radius from SP3 4SG.

If travel takes more than 1hr 15 minutes, the Photographer has the right to include travel time @ 50% hourly rate for commercial work. This will be agreed prior to the session and added to the booking.

Travel time will be quoted for weddings and family work where appropriate.

If travel exceeds 3hrs in one direction, overnight accommodation may be added. This will be agreed prior to the session and included on the booking form.

If travel is by train and/or other public transport, the Photographer will acquire quotes and the cost will be agreed beforehand, included on the booking form and added to the invoice.

If you cancel the session and travel has already commenced, you may be billed for a percentage or all of the costs, dependant on the situation.

 

Return & Refunds Policy

Once the Image has been checked, collected, and signed for, no returns will be accepted, nor will the Photographer generate any refunds.

All photographs supplied by the photographer are produced to the highest standards, using the highest quality Images and latest processing techniques. However, all photographs will, in time, fade. This is particularly true if they are left in bright sunlight and are not behind glass. The Photographer cannot accept any responsibility for this gradual image deterioration.

Storage of Images

Original digital images are kept on an active file for three (3) months, after which time they will be deleted, unless they are to be used for marketing purposes.

Client Responsibilities

Photography sessions do involve some physical activity, undertaken at your own risk. If you have any aversion to flash photography, or any history of medical problems, such as skin allergy or epilepsy, that may affect the success of the photoshoot at any point; it is your responsibility to let the Photographer know in advance. 

Whilst the Photographer will always ensure a safe environment within the photoshoot, it is the parent’s/guardian’s responsibility to ensure that all children are supervised, and remain safe at all times to avoid danger caused by the misuse, handling or interference of equipment or surroundings.

You acknowledge that our ability to provide the services is dependent upon your full and prompt co-operation as well as the accuracy and completeness of any information and data you provide to us. Accordingly, you shall, in a timely manner, provide us with access to, and use of, all information, data and documentation reasonably required by us for the performance by us of our obligations under the contract.

You agree to follow our reasonable instructions and procedures with respect to the services. You agree to provide us with all relevant information and images, in an acceptable format, as requested by us prior to project commencement.

You warrant that you will obtain and maintain all necessary licenses and consents for the performance of the services.

You shall be responsible for signing off any content and images we create on your behalf in a within four (4) working days from submission of any draft or proof.

Work shall be deemed to be completed if we do not receive any feedback from you for 30 days from submission of any draft or proof.

We shall not be required to create any Images which in our opinion is, or may be of, an illegal or libellous nature or an infringement of the proprietary or other rights of any third party. We shall be indemnified by you in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of copyright, patent, design of or any other proprietary or personal rights contained in any copy created for you. The indemnity shall extend to any amounts paid on a solicitor's advice in settlement of any claim.

Rescheduling

You may reschedule your booking once, to a date within three (3) months of the original date. The Photographer is not available on your new chosen date, then the booking is deemed to be cancelled and the following cancellation clauses applies.

Cancellation - Your Statutory Rights (Wedding & Family Shoots and Workshops with Individuals)

The Customer has the right to withdraw from their booking at any time before it is accepted by the Photographer.

The Customer, being an individual, has a statutory right to cancel their booking within fourteen (14) days of the start date without giving any reason. The booking fee and any other balance paid will be refunded.

The cancellation period will expire fourteen (14) days from the day of conclusion of the Contract (the Start Date).

To exercise this right to cancel The Photographer must be informed by the Customer of their decision to cancel by a clear statement (e.g. a letter sent by post or email or using the model cancellation form attached to these terms). 

To meet the cancellation deadline, it is enough for the Customer to send their communication concerning their exercise of the right to cancel before the cancellation period has expired.

Once the fourteen (14) day statutory period has expired the Customer may still cancel an order, subject to the following charges to cover reasonable expenses incurred:

• More than four (4) weeks to the shoot date – 10% of the total contract price
• Between one (1) and four (4) weeks before the event date – 30% of the total contract price
• Less than one (1) weeks before the event date – 75% of the total contract price

If the Customer has paid more than the relevant charge the Photographer will issue a refund of any balance within fourteen (14) days of receiving the notice of cancellation. Any balance owing will be invoices and payment is due within fourteen (14) days from date of invoice.

Cancellation for Commercial Photography (Not Retainer)

For businesses cancelling an order will incur the following charges to cover reasonable expenses incurred:

• More than four (4) weeks to the shoot date – 10% of the total contract price
• Between one (1) and four (4) weeks before the event date – 30% of the total contract price
• Less than one (1) weeks before the event date – 100% of the total contract price 

If the Customer has paid more than the relevant charge the Photographer will issue a refund of any balance within fourteen (14) days of receiving the notice of cancellation. Any balance owing will be invoiced, and payment is due within fourteen (14) days from date of invoice.

Cancellation for Commercial Retainer Contracts

These contacts run for a twelve (12) month period and are not cancellable.

Four (4) to six (6) weeks prior to the end of the twelve (12) month contract period the Photographer will invite you to renew for a further twelve (12) months. Should you not wish to renew you must advise the Photographer at this time. 

Right of Termination

The Photographer reserves the right to terminate the contract with immediate effect in the event of any of the following:

• That you suspend, threaten to suspend, cease or threaten to cease to carry on, all or substantially the whole of your business.
• That you (being an individual) die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or become a patient under any mental health legislation.
• That you (being an individual) enter into some form of debt arrangement or are declared bankrupt.
• That, in our opinion, your financial position deteriorates to such an extent your capability to adequately fulfil your obligations under these terms has been placed in jeopardy.

If either party breaches a material provision under this contract, and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice of the breach, the non-defaulting party may terminate this contract immediately and require the defaulting party to indemnify the non-defaulting party against all reasonable damages.

All notices of termination of the contract should be submitted to the other party in writing.

Consequences of Termination

On termination of the contract for any reason:

• You shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has yet been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
• The accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the contract which existed at or before the date of termination or expiry; and
• Clauses which expressly or by implication have effect after termination shall continue in full force and effect.

Indemnity

While the Photographer takes all reasonable care in the performance of this agreement generally, they shall not be liable for any loss or damage suffered by you or by any third party arising from use or reproduction of any image.

You agree to indemnify the Photographer in respect of any claims or damages or any costs arising in any manner from the reproduction without proper reproduction rights of any image supplied to you by the Photographer.

It is you who must satisfy yourself that all necessary rights, model releases or consents which may be required for reproduction, are obtained and it is acknowledged that the Photographer gives no warranty or undertaking that any such rights, model releases or consents have or will be obtained whether in relation to the use of names, people, trade marks, registered or copyright designs or works of art depicted in any image. In the event that the image was issued or reproduced by or with your authority then you shall indemnify the Photographer against any loss or damage, proceedings or costs where such rights, releases or consents have not been obtained.

Limitation of Liability

We cannot be held responsible in any way for any unsuitable weather conditions that may arise. The normal cancellation fee will be applicable in these situations.

Images placed in password protected galleries within the Photographers’ website are not available to the public in the normal course of events. However, it may not always be possible to prevent determined persons from accessing these galleries. 

Our liability for losses you suffer as a result of us breaking this agreement including deliberate breaches is strictly limited to the contract price and any losses which are a foreseeable consequence of us breaking the agreement. Losses are foreseeable where they could be contemplated by you and us at the time your order is accepted by us.

This does not include or limit in any way our liability:

• for death or personal injury caused by our negligence
• under section 2(3) of the Consumer Protection Act 1987
• for fraud or fraudulent misrepresentation
• for any deliberate breaches of these Terms by us that would entitle you to terminate the contract between us
• for any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability

We are not responsible for indirect losses which happen as a side effect of the main loss or damage and which are not foreseeable by you and us including but not limited to:

• loss of income or revenue
• loss of business
• loss of profits or contracts
• waste of management or office time however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable

This indemnification will survive the termination of this agreement.

Events Outside of Our Control (Force Majeure)

Neither party to these terms and conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, epidemic, pandemic or any other event that is beyond the control of the party in question.

If, under these circumstances, the booking cannot be deferred then it is at the discretion of the Photographer whether any fees paid already will be refunded.

Ownership Rights & Usage (Intellectual property rights, including copyright)

The intellectual property rights created, developed, subsisting, or used in connection with the services are owned by the Photographer. No content in whole or in part of our Images may be copied, reproduced, uploaded, posted, displayed, linked to or used in any way without our prior written permission. Any such use is strictly prohibited and will constitute an infringement of our copyright and other intellectual property rights.

Upon receipt of full payment, we grant to you a royalty-free, worldwide license, revocable only for breach by you of the terms of the contract, to use the Images as follows:

For wedding and family shoots The Photographer is granting a personal usage licence to you for their lifetime.  This licence includes permission to share the images with friends and family, including printing.

For commercial shoots, the Photographer grants you the right to reproduce the Images in a given context as specified in the shoot confirmation.  A written agreement must be reached with the Photographer before the pictures are used for a different purpose and any such permission may be subject to payment of an additional charge. 

These rights are personal to you and may not be assigned, nor may any Images submitted to you be loaned or transferred to third parties save for the purpose of the exercise by the Client of such reproduction rights.

Title to all Photographs remains the property of Barbara Leatham Photography.

Except for the overlaying of text or cropping of images for use on social media, you may not alter the Images in any way without our prior written consent. This restriction includes, but is not limited to change of style, colour balance or use of filters.

Unless specifically otherwise agreed in writing between you and the Photographer, the Photographer is entitled to utilise the Images produce for you, for the advertising, marketing and promotion of the Photographer's business.

Right to a Credit

The licence to use requires that the photographers name ‘Barbara Leatham Photography’ will be printed on or in reasonable proximity to all published reproductions of the photographs. The photographer asserts their statutory right to be identified as the author of the work in the circumstances set out in Sections 77 to 79 of the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof.

Unless otherwise agreed in writing if any image reproduced by you omits the copyright notice or credit line specified by the Photographer any fee payable by you shall be subject to an increase specified by the Photographer, and in any event an increase of not less than 25%.

Exclusivity

Exclusivity is not guaranteed as we treat each individual business or organisation in a bespoke and confidential fashion – unless we deem it to be unworkable and this will be our decision. Every business is different as the people in every business are unique. 

We are willing to sign none disclosure agreements when relevant. 

Confidentiality

Confidential information (the “confidential information”) refers to any data or information relating to your business which would reasonably be considered to be proprietary to you including, but not limited to, output Image, business processes and client information and that is not generally known in your industry and where the release of that confidential information could reasonably be expected to cause you harm.

All written and oral information and Image disclosed or provided by you to the Photographer under this agreement is confidential information regardless of whether it was provided before or after the date of this agreement or how it was provided to the Photographer.

On the conclusion or termination of the contract both parties shall cease to use all copies of confidential information obtained from the other except in so far as the law requires the information be retained in which event it shall be kept until such period is over and, in any event, kept strictly confidential under the provisions of this clause.

Data Protection

‘‘Data Protection Legislation’ refers to The Data Protection Act 2018 and any secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time. 

All personal information that the Photographer may collect (including, but not limited to, your name, postal address, email address and telephone number) will be collected, used and held in accordance with the provisions of data protection legislation as defined above.

How the Photographer collects, uses, and stores your personal information is set out in their privacy policy. 

In certain circumstances, and with your consent, the Photographer may pass your personal information on to credit reference agencies. These agencies are also bound by the data protection legislation as defined above and should use and hold your personal information accordingly.

The Photographer will not pass on your personal information to any other third parties for marketing purposes without first obtaining your express consent.  

Complaints, Communication and Contact Details

If you wish to contact us with questions, or to make a complaint, please contact us by telephone 07940 791869 or by email at  [email protected]

We strive for excellence in all our work. If you are not satisfied in any way, please contact us as soon as possible. We would appreciate every opportunity to resolve any dispute amicably.

Other Important Terms

In the event that any of the provisions of the contract are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this contract.

The contract between you and us for the works shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by you, without our prior written consent.

No failure or delay by us in exercising any of our rights under this contract means that we have waived that right, and no waiver by us of a breach of any provision this contract means that we will waive any subsequent breach of the same or any other provision.

Nothing in the contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

A person who is not a party to the contract shall not have any rights to enforce its terms.

Governing Law and Jurisdiction

This contract shall be governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the courts of England & Wales.