LEE BLANCHFLOWER TRADING AS BLANC CREATIVE – Terms of Business
1.1 LEE BLANCHFLOWER TRADING AS BLANC CREATIVE (‘the Photographer’) agrees to provide the Photography / Video Production / Aerial Filming subject to the following Terms of Business (‘the Terms’).
1.2 These Terms come into force on the date that the Assignment Confirmation is either signed or agreed in writing by the Customer and will continue in force until cleared payment has been received from the Customer at which time it will terminate, unless cancelled by the Photographer in accordance with clause 9. Clause 10 of these Terms will survive expiry.
1.3 These Terms, together with the Assignment Confirmation constitute the entire agreement between the parties and shall prevail any other terms or conditions contained within any other document or communication between the Photographer and the Customer.
1.4 These Terms apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Any variation, including the introduction of any additional terms and conditions, to these Terms, shall only be binding when agreed in writing and signed by the Photographer.
In these Terms, the following definitions apply:
Assignment: means the contract between the Photographer and the Customer for the provision of Photography / Video Production / Aerial Filming to be delivered in accordance with these Terms and the Assignment Confirmation;
Assignment Confirmation: means the document issued by the Photographer to the Customer and signed by or on behalf of the parties detailing the Photography / Video Production / Aerial Filming and other matters concerning the Assignment;
Assignment Date: means the date(s) on which the Photographer attends to take Photographs for Customer;
Charges: means the charges payable by the Customer for the supply of the Photography / Video Production / Aerial Filming in accordance with clause 5 and as set out in the Assignment Confirmation;
Commencement Date: means the date on which the Assignment Confirmation is signed by the Photographer;
Customer: means the person or business for which the Photography / Video Production / Aerial Filming are provided by the Photographer;
Intellectual Property Rights: all copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill, unfair competition rights, rights in designs, rights in computer software, database right, photography rights, moral rights, rights in confidential information and any other intellectual property rights, in each case whether registered or unregistered, and all similar or equivalent rights or forms of protection in any part of the world;
Photographs: means the photographic images detailed in the Assignment Confirmation, which may include printed photographs, digital/disk images and negatives.
Photography / Video Production / Aerial Filming: The Photography / Video Production / Aerial Filming supplied or to be supplied by the Photographer to the Customer as detailed in the Assignment Confirmation which include the taking of Photographs on the Assignment Date and delivery of them to the Customer;
Photography / Video Production / Aerial Filming
3.3 The Photographer shall use all reasonable endeavours to deliver the Photography / Video Production / Aerial Filming on the agreed dates. Delivery of the Photographs will not be of the essence and failure to meet the time agreed will not be a breach of these Terms.
Any advertising issued by the Photographer, and any descriptions or illustrations contained in the Photographer’s brochures or on any of its websites, (‘the Website’), are issued or published for the sole purpose of advertising the Photography / Video Production / Aerial Filming and shall not form part of the Agreement or have any contractual force.
The Photographer shall have the right to make any changes to the Photography / Video Production / Aerial Filming which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Photography / Video Production / Aerial Filming.
The Photographer may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under these Terms. The Photographer may subcontract or delegate in any manner any or all of its obligations to any third party or agent.
4.1 The Customer agrees to cooperate with the Photographer and to promptly provide the Photographer with any information, documentation, licences or permits on request to enable the Photographer to deliver the Photography / Video Production / Aerial Filming in accordance with these Terms and the Assignment Confirmation.
4.2 The Customer will be responsible for obtaining all licenses and consents required for the performance of the Photography / Video Production / Aerial Filming and will promptly provide to the Photographer copies of the same upon request.
4.3 The Customer herby indemnifies the Photographer against all sums due to any loss, damage, claims, obligations, liabilities, expenses and costs arising as a result of a breach by the Customer of any of these Terms (including legal fees).
5.1 The Charges for the Photography / Video Production / Aerial Filming shall be detailed in the Assignment Confirmation.
5.2 Such Charges as set out in the Confirmation are fixed for 60 days following the Assignment Date. Following expiry of 60 days, the Photographer reserves the right to increase the Charges.
6. Additional Expenses
a) £10.00 for each hour travelled charged at a minimum of 1 hour;
b) £0.50 for each additional mile travelled
c) Mileage and travel time will be agreed with ‘the customer’ prior to assignment commencement.
7.1 The Customer shall pay the Photographer on the terms as set out in the Assignment Confirmation.
7.2 All payments must be made in pounds sterling. 7.7 Any upgrades to licensing requests or changes to intellectual copyright requested after the Assignment Confirmation has been signed shall be invoiced as per payment terms as documented in the assignment confirmation.
8. Payment Default
8.1 In the event that the Customer does not make payment by the due date in accordance with the Assignment Confirmation or these Terms, the Photographer reserves the right to;
a) suspend delivery of the Photography / Video Production / Aerial Filming;
b) withhold Photographs; and
c) charge an administration fee of £40 after failure to comply with the agreed Payment Terms for the assignment undertaken.
2 LEE BLANCHFLOWER TRADING AS BLANC CREATIVE offer strict 30-Day Payment Terms.
Day 1 of terms coincide with commencement of (‘the assignment’) by (‘the photographer.’)
Payment will be made using BACS or Cash. Paypal payments are accepted, but an additional 5% will be added to the total assignment cost to cover processing fees.
In the event that a payment is outstanding for 30 days or more over the agreed payment terms, the Photographer, without limiting any of its rights or remedies, reserves the right to destroy the Photographs. All other rights of the Photographer are reserved.
8.3 All amounts payable by the Customer are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under these Terms by the Photographer to the Customer, the Customer shall, on receipt of a valid invoice from the Photographer, pay to the Photographer such additional amounts and are chargeable on the supply of the Photography / Video Production / Aerial Filming at the same time as payment is due for the supply of the Photography / Video Production / Aerial Filming.
8.4 The Customer shall pay all amounts due in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Photographer in order to justify withholding payment of any such amount in whole or in part. The Photographer may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Photographer to the Customer.
8.5 In the event that the Customer fails to pay by the due date in breach of these Terms and the Photographer exercises its rights under clause 8.1(a) of these Terms, the Customer will pay to the Photographer, by way of damages and being a genuine pre-estimate of loss suffered, an additional 10% of all sums due under the Assignment (‘Liquidated Damages’), payable on demand as a debt together with interest from the due date, accruing at a rate of 2% per month until payment is made.
9.1 The Photographer may cancel the Assignment by giving at least 1 week of notice in writing. In the event that the Photographer exercises its right under this clause, it will refund all monies received from the Customer in relation to the agreed assignment.
9.2 In the event that the Customer fails to notify the photographer of a cancellation within a period of 1-week prior to the Assignment commencing, the customer will pay the Photographer, by way of a pre-estimated of loss suffered, 25% of all sums due under the Assignment. Cancellations fees will be waived only if the Assignment is re-booked to commence within 28 days of the original Assignment date. The Photographer will allow ‘ONE’ re-booking of assignment following a cancellation, before cancellation fees are chargeable.
In the event that the customer fails to notify the photographer of a cancellation within a period of 48 hours of the Assignment commencing, the customer will pay the Photographer, by way of a pre-estimated of loss suffered, 50% of all sums due under the Assignment. Cancellations fees will be waived only if the Assignment is re-booked to commence within 28 days of the original Assignment date. The Photographer will allow ‘ONE’ re-booking of assignment following a cancellation, before cancellation fees are chargeable.
9.3 In the event that the Customer books an assignment at short notice, to commence within a 1-week period, cancellations will be accepted up to 48 hours of the Assignment. If cancellations are made within 48 hours, the customer will pay the Photographer, by way of a pre-estimated of loss suffered, 50% of all sums due under the Assignment. Cancellations fees will be waived only if the Assignment is re-booked to commence within 28 days of the original Assignment date. The Photographer will allow only ‘ONE’ re-booking of assignment following a cancellation, before cancellation fees are chargeable.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Photography / Video Production / Aerial Filming shall be owned by LEE BLANCHFLOWER, the Photographer. The Photographer shall be entitled to use the Photographs in any promotional advertisements (including on the Website) for the purpose of advertising the Photography / Video Production / Aerial Filming unless specifically agreed in writing with the customer prior to the assignment being undertaken.
10.2 The Customer acknowledges that it does not own the copyright in the Photographs and accepts that its rights are limited to possessing, holding and using the Photographs as stated in the Assignment Confirmation
10.3 The Customer warrants that it will not scan, copy, duplicate, distribute or otherwise reproduce the Photographs.
10.4 The Customer warrants that it will do the following:
(i) not use the Images for any purpose outside of the agreed assignment confirmation without the express written consent of the photographer;
(ii) not allow any resale of the Photographs or allow any third-party use without the express written permission of the Photographer.
(iii) indemnify the Photographer against any claims, losses or damages incurred as a result of or in connection with any breach of this clause 10.
10.6 The Photographer accepts no liability for any loss, damage, costs or expenses arising from unauthorised use of the Photographs. The Photographer will retain RAW material from the assignment for a period of one calendar month following completion of the assignment. The customer agrees to store all final products once received. The Photographer, without limiting any of its rights or remedies, reserves the right to destroy the Photographs / RAW footage after this period without permission of the customer. All other rights of the Photographer are reserved.
10.8 This clause shall survive any agreement between the parties.
Limitation of Liability
11.1 If the Photographer’s performance of any of its obligations under these Terms is prevented or delayed by any equipment failure or loss of equipment/compact flash cards/digital files or media, it will not be a breach of these Terms.
11.2 If the Photographer’s performance of any of its obligations under these Terms is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Photographer shall without limiting its other rights or remedies have the right to suspend performance of the Photography / Video Production / Aerial Filming until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Photographer’s performance of any of its obligations;
(b) in accordance with clause 11.4 the Photographer shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Photographer’s failure or delay to, perform any of its obligations as set out in clause 3 of these Terms; and
(c) the Customer shall reimburse the Photographer on written demand for any costs or losses sustained or incurred by the Photographer arising directly or indirectly from the Customer Default.
11.3 Nothing in these Conditions shall limit or exclude the Photographer’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.
11.4 Subject to clause 11.3 above:
(a) the Photographer shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with these Terms; and
(b) the Photographer’s total liability to the Customer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total payment in respect of that Assignment due by the Customer.
11.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
12.1 Force majeure:
(a) For the purposes of this Agreement, Force Majeure Event means an event beyond the reasonable control of the Photographer including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Photographer or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Photographer’s or subcontractors.
(b) The Photographer shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
If the Force Majeure Event prevents the Photographer from providing any of the Photography / Video Production / Aerial Filming for more than 4 (four) weeks, the Photographer shall, without limiting its other rights or remedies, have the right to terminate the Assignment immediately by giving written notice to the Customer.
(a) A waiver of any right under the Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.4 A person who is not a party to the Assignment shall not have any rights under or in connection with it.
12.5 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction in connection with the Agreement.