Terms of Service
BACKGROUND:
These Terms and Conditions shall apply to all orders for photography services by Brighthouse Photography Limited “BHP”.
1. Definitions and Interpretation
1.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“the Agreement” means the agreement for the provision of BHP’s services which incorporates these Terms and Conditions;
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
“Agent” means the Estate Agent who requires BHP’s services subject to these Terms and Conditions;
“Expenses” means additional costs incurred by BHP in relation to the provision of his Services;
“Licence” means an a non-exclusive, perpetual, non- transferrable, licence granted by BHP to the Agent under Clause 7 to use the digital content delivered pursuant to the Services for the purpose of marketing the subject matter of such material;
“Services” means in accordance with the Technical Specifications
“Technical Specification” means the technical specification for the Services as set out in Annex 1
“Vendor “ means the client of Agent and owner of property that is subject matter of Services
1.2. Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission or similar means;
1.2.2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3. “these Terms and Conditions” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
1.2.4. a Clause or paragraph is a reference to a Clause of these Terms and Conditions
1.2.5. a "Party" or the "Parties" refer to the parties to these Terms and Conditions.
1.3. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4. Words imparting the singular number shall include the plural and vice versa.
1.5. References to any gender shall include any other gender.
1.6. References to persons shall include corporations.
2. Orders
2.1. Once the Agent has completed and submitted an order for Services BHP may prepare and submit a quotation to the Agent.
2.2. The Agent may accept the quotation by email. Once a quotation is accepted by the Agent a binding contract will have been formed for the provision of Services subject to these Terms and Conditions.
3. Price and Payment
3.1. The price for the services shall be set out in the quotation and be inclusive travel of up to a 10-mile radius (20- mile round trip), thereafter a mileage excess charge of £0.45/mile will apply.
3.2. BHP shall invoice the Agent following completion of the Services.
3.3. Any and all invoices provided by BHP to the Agent under the Agreement must be paid in full within 30 days of delivery.
3.4. Any sums which remain unpaid after 30 days shall incur interest on a daily basis at 3% above the base rate of Barclays Bank plc from time to time until payment in full is made.
3.5. Where any sums remain unpaid the Licence granted to the Agent under Clause 7 shall be suspended until payment is received in full by BHP.
4. Cancellation and Rescheduling
4.1. The Agent may cancel or reschedule the Services up to 24 hours prior to start date of the Services.
4.2. The following shall apply to any other cancellation or rescheduling:
4.3. If the Agent or the Vendor cancels the Services less than 24 hours prior to the start date BHP shall be entitled to a sum equal to 50% of the fees for the Services;
4.4. If the Agent or the Vendor reschedules the Services less than 24 hours prior to the start date BHP shall be entitled to a postponement fee equal to 25% of the fees for the Services (in addition to the fees for the Services delivered);
4.5. If BHP is denied entry or access to the property to be photographed when attending for the delivery of the Services (for whatever cause, including but not limited to bad weather) the fees for the Services shall still be payable in full.
4.6. BHP may cancel the Services at any time prior to the time for delivery.
5. Photography
5.1. Subject to any specific reasonable requirements set out by the Agent, BHP shall use their own exclusive judgement when selecting equipment and deciding upon artistic factors such as composition, lighting and photographic style.
5.2. Subject to the nature of the Services and the specific reasonable requirements of the Agent BHP will take as many Photographs as they deem appropriate with a view to giving the best choice when processing and preparing the final Photographs for selection by the Agent. The number of Photographs taken during the Services shall not affect the Price payable by the Agent.
5.3. The Agent shall have a period of 48 hours following delivery to inform BHP of any significant flaws in the Services. BHP shall undertake any necessary remedial action which is reasonably practicable upon being informed of any such problems.
5.4. Subject to the provisions of sub-Clause 5.3, there shall be no right to reject the Services.
5.5. BHP shall be free to sub-contract any of their obligations under the Agreement provided that any and all sub-contractors are reasonably skilled in the relevant practices and provided that no additional charges are passed on to the Agent.
6. Copyright and Licensing
6.1. The Copyright in the Services is and shall remain the property of BHP. Nothing in these Terms and Conditions shall vest any ownership rights in the Agent.
6.2. A Licence granted pursuant to sub-clause 6.4 shall become effective on the date of delivery of the Services and, subject to the provisions of these terms and Conditions shall continue from that date for the duration of copyright protection (which shall be the life of BHP plus 70 years under Section 12 of the Copyright Designs and Patents Act 1988).
6.3. The Agent must ensure that BHP’s name is shown on or in reasonable proximity to all reproductions of any element of the Services which are published by the Agent. BHP hereby asserts their statutory right to be identified under Sections 77-79 of the Copyright Designs and Patents Act 1988. BHP may subsequently waive this requirement at any time by giving written notice to the Agent.
6.4. The Agent shall be permitted to use the materials delivered pursuant to the Services subject to the following limitations:
6.4.1. The Services may not be used for any purposes which are libellous, defamatory, pornographic, obscene or otherwise unlawful;
6.4.2. The Services may not be used to form any part of a logo, service mark, trade mark or any other form of business or brand identity;
6.5. The Agent may not sub-licence any materials delivered pursuant to the Services without the prior written permission of BHP.
6.6. BHP reserves the right to use all photographs or other digital content in any advertising or promotional material provided such material is only related to BHP or its services.
6.7. The Licences granted to the Agent shall be automatically revoked if the Agent breaches any of these Terms and Conditions.
7. Insurance, Liability and Indemnity
7.1. BHP shall have in place public liability insurance with a limit of indemnity of £1,000,000
7.2. BHP shall have in place professional indemnity insurance with a limit of indemnity of £50,000.
7.3. Whilst BHP shall use all reasonable endeavours to ensure that all materials delivered in a digital format are free from viruses and errors, BHP provides no guarantee that they will be free from such defects and accepts no liability for any loss or damage which may result from the same.
7.4. Except in respect of death or personal injury caused by BHP’s negligence, and except in respect of fraud or fraudulent misrepresentation,
7.4.1. BHP shall not be liable in contract or tort (including negligence) or otherwise for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims arising from any act or default of BHP in connection with the performance of BHP’s obligations arising under the Agreement or the use by the Agent of any Photographs or services provided to them by BHP.
7.4.2. BHP’s total liability for each contract for delivery of Services shall be limited to the price payable for such Services.
8. Confidentiality
8.1. BHP will keep confidential and will not disclose to any third parties or make use of material or information communicated to them in confidence for the purposes of the Services, save as may be reasonably necessary to enable BHP to carry out their obligations in relation to the Services.
8.2. BHP will not store the personal details of any Vendor supplied by the Agent for the purposes of making an appointment with the Vendor.
9. Force Majeure
9.1. BHP shall not be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond their reasonable control (“Force Majeure”) 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 or any other similar or dissimilar event that is beyond the control of BHP.
9.2. BHP shall advise the Agent in writing as soon as possible if and when any such Force Majeure event occurs and at the same time provide an estimate to the Agent of how long the event is likely to continue and its likely impact on the performance of BHP’s obligations.
10. No Waiver
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
11. Set-Off
Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
12. Third Party Rights
No part of the Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
13. Entire Agreement
13.1. The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
13.2. Each Party acknowledges that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14. Severance
In the event that one or more of the provisions of the Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement. The remainder of the Agreement shall be valid and enforceable.
15. Law and Jurisdiction
These Terms and Conditions and the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
END
OCTOBER 2021