General Terms & Condition
This document is a contractual agreement made between:
SASKIA NELSON, trading as Hey Tuesday (referred to hereafter as “Photographer”). The terms “me” or “my” shall likewise refer to Hey Tuesday.
6070 Birmingham Business Park
Tel: 07909 443595
Email: firstname.lastname@example.org ; and,
You, (referred to here as the “Client” or You)
These Terms and Conditions are the standard terms for the provision of photography services to consumers by Saskia Nelson trading as Hey Tuesday.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in the United Kingdom;
“Calendar Day” means any day of the year;
“Contract” means the contract for the provision of the Photographer’s Services, as explained in Clause 3;
“License” means a non-exclusive, perpetual, non-transferrable, license granted to you by the Photographer to use the photographs for non-commercial purposes under Clause 7;
“Month” means a calendar month;
“On-Site Photographer” means the individual or company assigned by Hey Tuesday to shoot the photographs on behalf of Hey Tuesday in accordance with the Order Confirmation;
“Order” means your order for the Photographer’s Services as described from time-to-time on the Photographer’s website;
“Order Confirmation” means the Photographer’s acceptance and confirmation of your Order;
“Package” means a package of the Photographer’s Services defining the number, types, pricing and other matters in relation to the photographs and services, as detailed on the Photographer’s website;
“Photographer’s Services” means the services provided by the Photographer;
“Photo Shoot” means all stages of the Photographer’s Services provided to you including preparation beforehand, the taking of Photographs and the processing of Photographs (references to “the date of the Photo Shoot shall refer to the date on which the Photographer will be taking the photographs); and,
“Price” means the price payable for the Photographer’s Services (excluding any additional costs incurred under sub-Clause 5.5).
1.2 Each reference in these Terms and Conditions to:
1.2.1. ‘writing’ and any similar expression includes electronic communications whether sent by e-mail, text message, fax or other means; and,
1.2.2. ‘Photographer’, means Hey Tuesday, unless the express words or context clearly indicates the On-Site Photographer defined in Section 1.1.
2.1 These Terms and Conditions govern the sale and provision of the Photographer’s Services and will form the basis of the Contract between you and the Photographer. Under the Contract, the Photographer will provide the Photographer’s Services and you will pay for them in accordance with the terms set out in these Terms and Conditions. Before submitting an Order, please ensure that you have read these Terms and Conditions carefully.
2.2 Nothing provided by the Photographer including, but not limited to, sales and marketing literature, price lists and other material constitutes a contractual offer capable of acceptance. Your Order constitutes a contractual offer that the Photographer may, at his/her sole discretion, accept in writing. Only upon such written acceptance may a contract be formed.
2.3 Order Confirmations will be provided in writing, normally in the form of an automatically generated e-mail to you at the e-mail address given in your Order (which the Photographer will also use as the main means of contact with you). A legally binding contract will be created when Hey Tuesday sends to you by email the Order Confirmation upon terms described therein, in accordance with Section 3.6, below.
2.4 The following information will be given or made available to you prior to the formation of the Contract between you and the Photographer, save for where such information is already apparent from the context of the transaction:
2.4.1 the main characteristics of the Photographer’s Services;
2.4.2 the total Price for the Photographer’s Services including taxes or, if the nature of the Photographer’s Services are such that the Price cannot be calculated in advance, the manner in which it will be calculated.
2.4.3 the arrangements for payment, performance of the Photographer’s services and the time by which (or within which) the Photographer undertakes to perform the Photographer’s Services;
2.4.4 the Photographer’s complaints handling policy;
2.4.5 any provisions regarding the duration of the Contract that may not be apparent or otherwise stated in the terms and conditions;
2.4.6 where applicable, the functionality, including appropriate technical protection measures, of digital content; and
2.4.7 where applicable, any relevant compatibility of digital content with hardware and software that the Photographer is aware of or might reasonably be expected to be aware of.
3.1 All matters arising from or related to Orders for the Photographer’s Services made by you will be subject to these Terms and Conditions.
3.2 When placing an Order, You will be required to provide the following details:
3.2.1. your name, phone number and email address;
3.2.2. your preferred location for the Photo Shoot from the choices provided, or confirmation of a special or preferred location if we provide that service that in your chosen area;
3.2.3. your preferred date for the Photo Shoot;
3.2.4. the Package you wish to select; and,
3.2.5. any special requirements you may have for the Photo Shoot.
3.3 We cannot guarantee and do not warrant that your preferences in clause 3.2 above (photographer, location, date and any special requirements) will be available or suitable. You will receive from us an Order Confirmation, as per clause 2.3 above, which will confirm (among other things) whether the selected location is available.
3.4. We understand busy personal schedules and seek to accommodate requests for rescheduling as much as we reasonably can without causing undue loss or financial burden to our photographers. You may change your Order at any time up to twenty-four (24) hours prior to 12:01 am on the date of the Photo Shoot by contacting the Photographer, who will use reasonable efforts to find a mutually convenient time for a rescheduled appointment. Please note that there may be certain changes, such as change of location that cannot be accommodated prior to the date of the Photo Shoot. Under certain circumstances, if you reschedule the Photo Shoot within the aforementioned 24 hour period, an additional fee, may be payable, reflecting the Photographer’s lost opportunity to make bookings with other customers. Please refer to Clause 9 for further details on Cancellation and Rescheduling. The Photographer may not be able to accommodate a request for a rescheduled Photo Shoot if a booking has already been made by another customer on your requested date.
3.5. If your Order is changed pursuant to your request, the Photographer will inform you of any change to the Price in writing.
3.6 Your order will be accepted and a legally binding contract formed when Hey Tuesday sends to you the Order Confirmation as stated in Clause 2.3.
4. Price and Payment
4.1 The Price of the Photographer’s Services will be calculated based upon the Package that you choose, as detailed on the Photographer’s website at the time of your Order.
4.2. The Photographer’s prices may change at any time, however, these changes will not affect Orders that have already been accepted.
4.3. Prices will indicate VAT if it is applicable. If the rate of VAT changes between the date of your Order and the date of your payment, the Photographer will adjust the rate of VAT that you must pay. Changes in VAT will not affect any Prices where you have already made payment in full.
4.4. You must bring your own clothing, non-photographic equipment and props to the Photo Shoot. Neither the Photographer nor the On-Site Photographer will provide these.
4.5. Based upon your special requests, the Photographer may, with your prior agreement, charge reasonable expenses in addition to the Price, including travel, sustenance and accommodation, and additional service costs, digital capture costs, as well as any fees relating to changes you wish to make with your Order, and will require payment by you in full prior to delivery of the final images. No such sums will be incurred or charged without your prior written agreement.
4.6. You must pay for your Photo Shoot immediately at the time of placing your Order or within a maximum of forty-eight (48) hours of placing your Order, failing which your Order will be deemed cancelled. Payment must be made through our online payment system or, in certain circumstances, by electronic bank transfer to a bank account nominated by the Photographer and must arrive as cleared funds prior to the date of the Photo Shoot.
4.7. In certain circumstances, if your Order is cancelled, you may be entitled to a refund. Please refer to Clause 9 for further details.
4.8. Any additional expenses agreed under Clause 4.5 above will be invoiced separately prior to the date of the Photo Shoot.
4.9. Where any refund is due to you under any of the provisions of these Terms and Conditions (including, but not limited to refunds in the event of cancellation under Clause 10), such refunds will be made as soon as is reasonably possible, and in any event within 14 Calendar Days of the event or circumstance leading to a refund being due to you. Any refund payment shall be made by the same payment method originally used by you unless Photographer agrees to an alternative method.
5. The Photographer’s Services
5.1 As required by law, the Photographer and the On-Site Photographer, as the case may be, will provide the Photographer’s Services with reasonable skill and care, consistent with best practices and standards in the non-commercial photography market, and in accordance with any information provided by the On-Site Photographer about him/herself and the Photographer’s Services.
5.2 When placing your Order, you will choose your Package and specify the subject matter of the Photo Shoot. You may, no later than forty-eight (48) hours prior to the date of the Photo Shoot, request the On-site Photographer to consider any specific photographs or compositions that you may prefer. There will be an opportunity to discuss your preferences with the Photographer after you place your Order, as the Photographer will send you a questionnaire beforehand. However, it is strictly within the discretion and judgement of the Photographer or the On-site Photographer as to whether your preferred photographs or compositions may be accommodated. Wherever reasonably possible, and strictly within the discretion of the Photographer, on-site requests for the shoot will accommodated by the Photographer.
5.3 Subject to the specification of your chosen Package, and any other preferences you specify (which the On-Site Photographer will use his/her reasonable efforts to accommodate), the Photographer or On-Site Photographer shall use his/her sole artistic and professional judgement when selecting equipment and deciding upon factors such as composition, lighting and photographic style.
5.4. To be clear, the On-Site Photographer shall be granted creative and artistic license in relation to the choice of locations and poses used. It shall be within the On-Site Photographer’s sole and exclusive discretion and judgement to determine photographic style and the number of photographs taken. Some photographs may not be possible due to changes of the weather and the availability and willingness of subjects. The On-Site Photographer will do his/her best to honor requested photographs but shall not under any circumstances warranty or guarantee any specific picture nor incorporate any specific background or location.
5.5. Subject to the nature of the Photo Shoot and to your express preferences, the Photographer will take as many photographs as he/she deems appropriate with a view to providing the best choice when processing and preparing the final photographs to be delivered to you. The number of photographs taken during the Photo Shoot will not affect the Price payable and the final number delivered to you will be determined by your chosen Package.
5.6. Light retouching, including light blemish and stray hair removal, shall be included with the Photographer’s Service. Heavier retouching, including such changes as the reduction of wrinkles, can be provided on request for an additional fee, which can be discussed with you by the Photographer upon your written request.
5.7. The images from your Photo Shoot will be uploaded to the Hey Saturday website, to which you will be given access by means of a unique User ID and Password. Do not share your Password with anyone. Please ensure you have an operable e-mail address, which should be provided to the On-Site Photographer to enable him/her to send you the relevant access codes. Please ensure you have access to a computer or Mac rather than a tablet or smartphone to download the images.
6. Copyright and Licence
6.1 The copyright in all photographs taken by the Photographer is, and shall remain, the property of the Photographer. Subject to any written agreement stating otherwise (and the payment of an additional fee), you shall not own the copyright in the photographs and may use them only in accordance with this Clause 6.
6.2 The License shall become effective upon the delivery of the photographs to you using the means stated in clauses 5.7 and 5.8 above and, subject to the provisions of Clause 6.6, shall continue for the duration of copyright protection (which shall be the life of the Photographer plus 70 years pursuant to the Copyright Act of 1978), after which the photographs will enter the public domain and will no longer be protected by copyright.
6.4 You may not sub-licence the photographs without the Photographer’s prior written consent.
6.5 Unless you expressly request otherwise, the Photographer reserves the right to use the photographs in any exhibitions, galleries, advertising or promotional material, provided only that such material is related to the Photographer or his/her services.
6.6 The License granted by the Photographer to you may be revoked if you breach any of its terms.
7. Problems with the Photographer’s Services and Warranty
7.1 The Photographer will always use his/her reasonable efforts to ensure that his/her provision of the Photographer’s Services is trouble-free. If, however, there is a problem with the Photographer’s Services, please inform the Photographer as soon as is reasonably possible.
7.2 The Photographer will use reasonable efforts to remedy problems with the Photographer’s Services as quickly as is reasonably possible and practical. In addition to your rights in clauses 7.4 and 7.5 below, in the unlikely event that:
7.2.1. you are completely dissatisfied with the final results of your Photo Shoot; and,
7.2.2. this dissatisfaction is based solely on your personal preference and subjective opinion; and,
7.2.3. all reasonable attempts at a compromise have been attempted,
then the Photographer will reshoot, for which we will charge you again the same fee less a twenty-five (25%) discount or, alternatively and entirely at the Photographer’s discretion, agree that a full or partial refund of the original agreed fee is due to you.
7.3 The Photographer will not charge you for remedying serious deficiencies or defects in Photographs under this Clause 7 where the deficiencies or defect(s) are not related to anything you have or have not done. If the Photographer determines that the problem has been caused by any action or omission on your part, the Photographer may charge you a reasonable sum for remedial work required.
7.4 Where a second or further Photo Shoot(s) are booked pursuant to this clause 7, you will be permitted to make use of prints from the second (or subsequent) Photo Shoot only.
7.5 Any claim you make as to an alleged defect in or your dissatisfaction with the photographs or services provided must be received by Photographer within 5 days of your receipt of the photographs, accompanied by a written description specifying the defect or the cause or your dissatisfaction. As to any photographs or services provided for which a written claim has not been made within the 5 day period permitted under this section 7.7, such photographs or services shall be conclusively deemed conforming in all respects to the Contract and accepted by you.
7.6 The foregoing warranties are in lieu of all other warranties and photographer hereby disclaims all other warranties, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. No employee or agent of Photographer, other than Saskia Nelson, is authorised to make any warranty in addition to the foregoing.
8. Photographer’s Liability
8.1. Subject to clause 8.2 below:
8.1.1. The Photographer takes great care with respect to the exposure, retouching, and transportation of digital captures, proofs and prints. However, in the unlikely event that all the originals are lost, stolen, damaged or destroyed while in the Photographer’s possession, the Photographer’s liability shall be limited to the refund of all payments received, or a reshoot, which can be scheduled at a mutually convenient time at no additional cost. The limit of liability for partial loss or damage of originals shall be a pro-rated amount of the total amount, based on the percentage of originals lost or damaged. In the unlikely event that Photographer or On-Site Photographer is injured or becomes too ill to attend the portrait session, the Photographer will make every effort to reschedule to the earliest possible date. If the situation should occur, and the portrait session must take place on the scheduled date, Photographer will make every effort to secure a replacement photographer. If the situation should occur and a suitable replacement is not found, responsibility and liability is limited to the return of all payments received; and,
8.1.2. the Photographer shall not be responsible or liable to you for any loss, theft or damage to your possessions or property which you have brought to the Photo Shoot.
8.2. Your exclusive and sole remedy for any cause or claim whatsoever, including but not limited to, alleged breach or warranty, product liability, negligence or otherwise shall be for money damages in an amount not to exceed 110% of the total amount paid by you to Photographer. In no event shall Photographer be liable for special, incidental or consequential damages, whether your claim is in contract, negligence, strict liability or otherwise in consideration of the sale of the photographs and service to you. This limitation applies regardless of whether Photographer has been advised of the possibility of such damage and regardless of whether such damage is due to your anticipated use or any personal, professional investment or reliance you may make upon the photographs or the service provided.
8.3. This clause applies to a Client who is using the Photographs for non-business purposes: the Photographer will be providing the Photographer’s Services for private (i.e. non-commercial) purposes only. The Photographer makes no warranty or representation that the Photographer’s Services are fit for commercial, business or industrial purposes of any kind. By making your Order, you agree that you will not in any manner use the Photographer’s Services or the photographs in any such context. The Photographer will not be liable to you for any loss of profit, loss of business, interruption to business or for any loss of business opportunity.
9. Rescheduling and Cancellation
9.1 You may reschedule or cancel the Photo Shoot for any reason within 12 months of the date of the Photo Shoot, however subject to Clause 10.2, the following shall apply to rescheduling or cancellation:
9.1.1 if you reschedule the Photo Shoot 12 hours prior to the date of the Photo Shoot, in accordance with 9.1 above, no further fees are payable;
9.1.2. if you reschedule the Photo Shoot on the date of the Photo Shoot, a surcharge of 50% of the original agreed fee shall be payable to cover our costs;
9.1.3. if you cancel the Photo Shoot (and the Contract) more than forty-eight (48) hours prior to the date of the Photo Shoot, the Photographer will refund all sums paid;
9.1.4. if you cancel the Photo Shoot less than forty-eight (48) hours but more than twenty-four (24) hours prior to the date of the Photo Shoot, the Photographer will, at your discretion:
18.104.22.168. retain all sums paid, and such sums shall count as partial payment towards the rescheduled Photo Shoot; or,
22.214.171.124. refund to you half of the fees paid.
9.1.5. if you cancel the Photo Shoot less than twenty-four (24) hours prior to the date of the Photo Shoot, the Photographer will retain all sums paid;
9.1.6. if you fail to appear at the Photo Shoot, we may (at our discretion) be willing to reschedule your Photo Shoot for an additional fee equal to fifty percent (50%) of the original agreed fee; and,
9.1.7. if you arrive late for your Photo Shoot, shooting will commence on your arrival but will end not later than ten (10) minutes after the scheduled end time. It is important that you arrive on time for your Photo Shoot.
9.1.8 Any and all refunds due will be paid to you as soon as is reasonably possible, and in any event within 14 Calendar Days of the Photographer’s acceptance of your cancellation notice.
9.2. In addition to sub-clause 9.1.6 above, and for the avoidance of doubt, the Photographer is not responsible if you fail to appear or cooperate during your Photo Shoot, nor for missed or unsatisfactory images due to you not providing an adequate brief to the Photographer prior to the date of the Photo Shoot.
9.2. The Photographer may cancel the Photo Shoot for any reason at any time up to forty-eight (48) hours prior to the date of the Photo Shoot. If you have made any payment to the Photographer, those sums will be refunded to you within 14 Calendar Days of the Photographer’s notification to you of cancellation.
9.3. If, at the Photographer’s sole discretion, it is not possible for a session to take place on a scheduled day due to weather, you can contact us to reschedule the Photo Shoot on an agreed date, with no additional charge to you.
10. Force Majeure
10.1 The Photographer will not be liable for any failure or delay in performing his/her obligations where that failure or delay results from any cause that is beyond his/her reasonable control. Such causes include, but are not limited to: power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots and other civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), acts of war (declared, undeclared, threatened, actual or preparations for war), epidemic or other natural disaster, or any other event that is beyond the Photographer’s or the On-Site Photographer’s reasonable control.
10.2 If any event described under this Clause 10 occurs that is likely to adversely affect the Photographer’s performance of his/her obligations under these Terms and Conditions:
10.2.1 the Photographer will inform you as soon as is reasonably possible;
10.2.2 the Photographer’s obligations under these Terms and Conditions will be suspended and any time limits that he/she is bound by will be extended accordingly (where such extension is reasonably possible);
10.2.3 the Photographer will inform you when the event outside of his/her reasonable control is over and provide any new dates, times or availability as necessary;
10.2.4 except in the case of sub-clause 10.2.5 below, if an event outside of the Photographer’s reasonable control occurs and you wish to cancel the Contract, you may do so in accordance with your right to Cancel under sub-Clause 9;
10.2.5. where the event occurs during the Photo Shoot, the Photographer will be entitled to retain all fees paid and the Contract shall be considered substantially performed by the Photographer.
10.3 Any refunds due to you as a result of that cancellation will be paid to you as soon as is reasonably possible, and in any event within 14 Calendar Days of the Photographer’s cancellation notice.
11. Your Personal Information
11.1 All personal information that the Photographer may collect (including, but not limited to, your name and address) will be collected, used and held with reasonable care, subject to the following:
11.2 The Photographer may use your personal information to:
11.2.1. provide the Photographer’s Services to you;
11.2.2. process your payment for the Photographer’s Services;
11.2.3. inform you of new products and services available from him/her. You may request that the Photographer stops sending you this information at any time;
11.2.4. the Photographer will not pass on your personal information to any third parties [without first obtaining your express permission].
11.3. Should you wish to see a copy of the information we hold about you or have your details removed from our database, please advise us in writing.
12. Entire Agreement
These Terms contain the entire agreement between the Photographer and you and supersede all prior agreements between the parties. The Terms may be changed from time-to-time by the Photographer, so please check back here regularly for updates.
13. Other Important Terms
13.1 You may not transfer (assign) your obligations and rights under these Terms and Conditions (and under the Contract, as applicable) without the Photographer’s express written permission.
13.2 The Contract is between you and the Photographer. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions.
13.3 If any of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
13.4 No failure or delay by the Photographer in exercising any of his/her rights under these Terms and Conditions means that the Photographer has waived that right, and no waiver by the Photographer of a breach of any provision of these Terms and Conditions means that the Photographer will waive any subsequent breach of the same or any other provision.
14. Governing Law and Jurisdiction
14.1 These Terms and Conditions, the Contract, and the relationship between you and the Photographer (whether contractual or otherwise) shall be governed by, and construed in accordance with the laws of the United States of America and the State of Delaware without regard to conflicts of laws principles and as though all aspects of this contract were to be performed within the state of Delaware.
14.2 Any dispute, controversy, proceedings or claim between you and the Photographer relating to these Terms and Conditions, the Contract, or the relationship between you and the Photographer (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the state and federal courts sitting within the State of Delaware.
14.3 Waiver of Jury Trial
Both you and the Photographer acknowledge and agree that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments and appendices attached to this Agreement, is likely to involve complicated and difficult issues and , therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments and appendices attached to this Agreement, or the transactions contemplated hereby. Each Party certifies and acknowledges that (a) no Representative of the other Party has represented, expressly or otherwise, that the other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) it has considered the implications of this waiver, (c) it makes this waiver voluntarily, and (d) it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section.