TERMS AND CONDITIONS
1. DEFINITIONS
1.1 In this Agreement the following words and expressions shall have the following meanings:
1.1.1 “Everybodysmile” means Everybodysmile Ltd of P O Box 259, Burgess Hill, West Sussex that owns and operates Everybodysmile.co.uk;
1.1.2. “Photographer” means the photographer or photographic studio which has instructed Everybodysmile to display items for viewing and sale via the Everybodysmile proofing system;
1.1.3. “Client” means the individual or business which has instructed Everybodysmile to provide services;
1.1.4. “Photographer’s Customer” shall have the meaning of Consumer as ascribed in section 12 of the Unfair Contract Terms Act 1977 and will refer to the purchaser of goods and images via the Everybodysmile online proofing service;
1.1.5. “Goods” means the articles that the Photographer’s Customer agrees to buy via the Everybodysmile proofing system;
1.1.6. “downtime” means any service interruption in the availability of the Website or other services provided to Clients;
1.1.7. “intellectual property rights” means patents, trade marks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, whether registerable or not in any country;
1.1.8. “server” means the computer server equipment operated by Everybodysmile in connection with the provision of the Services and the servers operated by Amazon Web Services;
1.1.9. “the Services” means the online proofing system, website design and construction, web hosting, email and any other services or facilities provided by Everybodysmile as outlined in Clause 3 of this Agreement;
1.1.10. “spam” means sending unsolicited and/or bulk emails;
1.1.11. “virus” means a computer programme that copies itself or is copied to other storage media, including without limitation magnetic tape cassettes, memory chips, electronic cartridges, optical discs and magnetic discs, and destroys, alters or corrupts data, causes damage to the user’s files or creates a nuisance or annoyance to the user and includes without limitation computer programs commonly referred to as “worms” or “trojan horses”;
1.1.12. “the Website” means www.everybodysmile.co.uk, www.everybodysmile.com, www.everybodysmile.biz, and www.everybodysmile.net and sub-domains thereof;
1.1.13. “the Photographer’s proofing gallery” means the online proofing website provided by Everybodysmile to the Photographer;
1.1.14. “Working days” refers to the weekdays Monday – Friday, not including weekends and public holidays;
1.1.15. “email address” refers to our main contact email address of enquiries@everybodysmile.co.uk;
1.2 Words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders.
1.3 The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
1.4 There is a distinction between Client and Photographer as in all instances a Client will be any business or individual engaged in requesting services from Everybodysmile, but not every Client will also be a Photographer who specifically requires the Everybodysmile proofing system.
2. INTRODUCTION
2.1 Everybodysmile is engaged in business as a website and systems developer and has agreed to supply and manage an online proofing gallery for the Photographer upon the following conditions.
2.2 Everybodysmile is engaged in business as a website and systems developer and has agreed to supply and manage an internet website for the Client for the purposes of advertising the Client’s business, and/or provide hosting or other associated website services upon the following terms and conditions.
3. DUTIES
3.1 In consideration of the payments outlined in Clause 4, Everybodysmile shall provide the Services specified as follows:
3.1.1 A complete website allowing the Photographer to advertise their business via the internet, which includes the facility to sell their images (“the Goods”) online to Photographer’s Customers.
3.1.2 An online proofing account which gives the Photographer the facility to sell their images (“the Goods”) online to Photographer’s Customers which reflects the branding of the Photographer’s own existing stand-alone website.
3.1.3 A complete website allowing any Client to advertise their business via the internet.
3.1.4 Other services in relation to website and/or email hosting, domain name registration/renewal and/or website maintenance.
3.2 Where the Client requires Everybodysmile to build a complete website, Everybodysmile will create and deliver the pages of the website containing all text, graphics, logos, photographs, images, moving images, sound, illustrations and other materials to be featured, displayed or used in relation to the website as agreed with the Client at the time of application.
3.3 Subject to clause 3.3.3, Everybodysmile undertakes to carry out the objectives set out in Clause 3.1 within the following periods, which are based on type of website required by the Client:
3.3.1 Full website, including all content, gallery and advertising pages: 28 – 42 days
3.3.2 Basic brand matched online proofing gallery especially for Photographers to tie in with an existing stand-alone website: 2 working days
3.3.3 If there is any reason for this deadline not being met, Everybodysmile will contact the Client at the earliest opportunity to explain the reasons for the delay and request any additional information which may be required from the Client before the work can be completed.
3.4 Where the Client has engaged more than one supplier in the provision of brand identity, design and general website development services, the delivery obligations set out in Clause 3.3 shall be conditional upon the performance of third parties, since Everybodysmile cannot complete the work required until final details have been agreed with the other suppliers.
3.5 In cases where Everybodysmile is required to reflect the branding on the Photographer’s existing website, the Photographer shall deliver to Everybodysmile, the website and the software used in the website which is owned by or licensed to the Photographer, in a format specified by Everybodysmile.
3.6 On completion of the Website, Everybodysmile shall provide the Client with a temporary URL where the Website can be viewed and tested. If the Client considers that amendments or modifications or corrective or remedial work are required, he shall promptly advise Everybodysmile in writing outlining the areas which require amendment. Following the necessary changes, the Client shall test the Website again on the same terms as above and if no further changes are requested by the Client, this shall be referred to as “successful completion”, and the Client’s website and account will become live.
3.7 Risk of loss or damage of any kind to the Client’s Website, the software used, the content or the documentation related to it shall pass to the Client only upon successful completion.
3.8 Everybodysmile can provide web hosting for the Client’s website if required.
3.8.1 Everybodysmile will monitor any websites which use the Everybodysmile hosting package and where any urgent security updates are required, Everybodysmile may apply these without prior advice to the Client.
3.9 Everybodysmile can provide website and email hosting services to Clients even if Everybodysmile was not engaged to build the original website. Any restrictions to services based on the design and software used for website build will be indicated to the Client prior to the hosting account being put in place.
3.9.1 Everybodysmile can provide email-only hosting for Clients who use website services elsewhere but that Third Party is unable to supply email services.
3.9.2 Everybodysmile will apply limits to the storage capacity for both websites and email. Any requests to increase storage for either or both will be discussed with individual Clients on an assessment of their needs. Charges for increased storage capacity will be indicated in Clause 4.
3.9.3 Everybodysmile can discuss arrangements for a bespoke hosting package where required by the Client, but this does not form part of the regular hosting package services provided. Charges for this will be agreed on an individual basis on an assessment of the Client’s needs and if Everybodysmile can provide a service which meets the specific requirements.
3.9.4 Everybodysmile cannot be responsible for the loss of emails stored only on their servers.
3.10 In cases where the Client has arranged their own website hosting for any site built by Everybodysmile, it will remain the Client’s responsibility to check the provisions and compatibility of the hosting. This is an ongoing responsibility; the Client’s choice of provider may advise of action required and the Client will be responsible for those arrangements.
3.10.1 If the Client’s choice of hosting provider requires amendments to the Client’s website, Everybodysmile reserves the right to charge for any work to update the website as required by the hosting provider.
3.10.2 Everybodysmile is not responsible for payments for any hosting charges to a Third Party chosen by the Client. The Client should ensure that all charges due to the Third Party are kept up-to-date to ensure the website hosting remains available.
3.11 Everybodysmile provides a domain name registration and renewal service. This is an optional service and all Clients are free to arrange their own domain names.
3.11.1 Everybodysmile will only monitor or renew domain names where the Client has requested Everybodysmile manages these.
3.11.2 Everybodysmile will not advise or remind Clients regarding domain name renewals held by a separate domain name registrar, and is not responsible for any non-payment/lapse in those domain names which may affect the provision of the Client’s Website or email.
3.12 Everybodysmile can provide additional services for monthly website monitoring for non-essential updates, regular website edits, website back-up processes and auto-renew options for an SSL Certificate. These services are available to all websites which are hosted within the Everybodysmile hosting package.
3.12.1 If the Client has chosen to arrange hosting via a Third Party and requires Everybodysmile to provide any of the additional services listed in Clause 3.12, these will be subject to compatibility with the Third Party hosting account.
3.13 Everybodysmile shall consider all written requests by the Client to make amendments, enhancements or improvements to the Client’s website. If it is possible for Everybodysmile to comply with the request, the work will be undertaken in agreement with the Client and with a description of what will be changed as necessary. Everybodysmile shall be entitled to charge a fee for any additional work undertaken, which will be confirmed to the Client in writing for agreement prior to commencement.
3.14 The Client shall ensure that all contact details provided to Everybodysmile are kept up-to-date. Any changes to postal or email addresses, telephone numbers or payment information should be confirmed in writing or updated via the account login at the earliest opportunity.
3.15 In consideration of the payment by the Photographer of the tariff mentioned in Clause 4, Everybodysmile shall provide to the Photographer the Services specified as follows:-
3.15.1. Maintenance of the Photographer’s online proofing system which includes the costs for web hosting for all images uploaded to the system and technical support.
3.16 Where the Photographer has selected a tariff which only requires payment as uploads are added, and no monthly fees are due, each upload will be available for a period of up to 12 months from the date of upload. After this time, one of the following options will apply, and the Photographer will be contacted prior to the end of the period with further details:
3.16.1 The entire gallery will be deleted in full.
3.16.2 The Photographer can choose to switch to a monthly tariff to allow all online galleries to be fully available.
3.16.3 The period can be extended for a further 12 months by the Photographer by way of an additional payment to cover this storage whilst retaining the general pay per upload tariff.
3.16.4 The Photographer can choose to retain a cover image per gallery at no further cost, which refers to the original gallery, but advises the Photographer’s Customers that the full collection of images has been taken offline. Each upload will then consist of just one image – the cover image and no other images will be available to view.
3.17 There are limits set to the total number of images stored on a Photographer’s proofing account, which are confirmed on the Everybodysmile Website. These will vary depending on the tariff selected, and Everybodysmile will consider any requests to increase this storage space on an individual basis. Everybodysmile reserves the right to charge for increased storage space which can be confirmed at any time. If the Photographer chooses to delete old uploads in order to make space for new uploads, this will avoid the need to increase storage capacity and no extra charges will be necessary.
3.18 Where the Photographer has requested that the upload is protected by a password, Everybodysmile shall not release this password to any third party, but redirect any enquiries to the Photographer.
3.19 Once Everybodysmile receives confirmation of a payment for an order via the Photographer’s nominated merchant account provider, email confirmation of the purchase will be sent by Everybodysmile to the Photographer and the Photographer’s Customer.
3.20 The Photographer will be able to check the administration area of the online proofing system at any time to ensure that all orders placed are being emailed correctly to the Photographer. If there is any discrepancy, Everybodysmile must be notified immediately. Everybodysmile will also send a summary by email every Monday confirming all orders paid for within the past 7 days.
3.21 Everybodysmile can make available an option for the Photographer to use a fulfilment service, where Everybodysmile will liaise directly with a printing laboratory to enable orders to be printed and dispatched to the Photographer’s Customers. The lab will be determined by Everybodysmile and as this is an option, the Photographer is free to organise their own order fulfilment. In cases where Everybodysmile organises the fulfilment, the costs incurred for this will be added to the Photographer’s invoice with Everybodysmile unless agreed otherwise.
3.22 Any orders for downloadable images which are made available from Everybodysmile’s servers immediately after payment will be sent to the email address provided by the Photographer’s Customer as they place their order. Everybodysmile is not responsible for any mistakes made by the Photographer’s Customer during the order process.
3.23 All details for products and prices which can be added to galleries to allow the Photographer’s Customers to order are editable via the Photographer’s login to the administration area. Everybodysmile recommends that Photographers always check live galleries after uploading to ensure correct product/pricing details appear or after making any amendment. Everybodysmile is not responsible for incorrect pricing or products being displayed on a gallery.
4. CHARGES AND PAYMENT
4.1 The Client shall pay the Charges for the Services in accordance with the Terms of Payment as set out below:-
4.1.1 Where Everybodysmile has been engaged in providing website build services, the Client shall pay the Charges for a complete website design in accordance with the following Terms of Payment:
4.1.2 The Client will be advised upon enquiry of the costs associated with the website build, any extra charges for website hosting, domain name registration/renewal or other services where appropriate. This is subject to review until a final decision on the website requirements has been agreed between Everybodysmile and the Client.
4.1.3 Once the initial design layout is agreed, a deposit for the website build may be requested. This will be calculated as a percentage of the total cost, and this will be required prior to the commencement of the build project. The deposit is non-refundable.
4.1.4 The remaining balance for the website build costs will be payable once the site goes live. Any instalment plans or a schedule of payments will be negotiable between Everybodysmile and the Client and must be agreed prior to the website going live. All payments will be due by direct debit.
4.1.5 If the Client requires any specific software to enable particular functionality on their website design, Everybodysmile will purchase any software or licences where appropriate and add the costs for these to the Client’s account.
4.1.6 In the event of any default in payment schedule or non-payment of balance, and in the absence of any discussion by email to resolve the situation, the website will be disabled.
4.2 The complete website will require hosting and this can be supplied by Everybodysmile. Charges for the hosting will be advised to the Client during the planning for the website build.
4.2.1 Where Everybodysmile is providing hosting for the Client’s website, fees are payable by monthly or annual direct debit, unless alternative arrangements are agreed between Everybodysmile and the Client.
4.3. Everybodysmile can provide website and/or email hosting accounts for Clients who have a stand-alone website designed or built by a Third Party.
4.3.1 Charges for website and/or email hosting are determined by the services required by the individual Client. All charges are payable by monthly or annual direct debit.
4.3.2 Everybodysmile can provide services for monthly website monitoring for non-essential updates, regular website edits, website back-up processes, and an SSL Certificate. These may be invoiced separately or incorporated into a single combined hosting fee.
4.3.4 If Everybodysmile is unable to determine that the Client is still trading and has not received any communication from the Client, the hosting package may be left to lapse at the renewal date or 3 months after arrears start to accrue if payments are expected monthly. Everybodysmile will undertake to contact the Client to discuss arrangements before any action is taken but cannot guarantee the hosting package will be maintained and the website/email will continue to be available if the Client does not make return contact with Everybodysmile.
4.3.5 If the Client receives an invoice for hosting or other associated charges and payment is not received or the direct debit fails, Everybodysmile will undertake to contact the Client to discuss payment arrangements. In the event of continued non-communication and non-payment from the Client, Everybodysmile will suspend the hosting and other associated services. This may affect the provision of the Client’s website and/or email service.
4.3.6 If the Client’s arrears are not repaid in a timely fashion or via any schedule agreed between Everybodysmile and the Client, and services are suspended, Everybodysmile will fully close any website services, email accounts and other associated services after a minimum of 28 days after the initial suspension advice.
4.3.7 Everybodysmile will not store back-ups of website or email accounts where the Client’s account has been closed due to non-payment of invoices or charges.
4.4 In accordance with Clause 3.10, if the Client chooses to organise their own website hosting, Everybodysmile will not apply any hosting fees as the Client will pay these to the hosting provider.
4.4.1 If the Client requires the website to be installed in hosting provided by a Third Party, full payment of the website build fee will be required before the website is transferred to the new hosting arrangements. Instalment options for payment of the website build will not be possible.
4.4.2 Everybodysmile is not responsible for payment of any charges levied by the Client’s choice of hosting provider if the hosting is not provided by Everybodysmile. The Client will be directly responsible for these payments to ensure the website is not disabled due to non-payment. Everybodysmile will not be liable for any loss of business if the website is disabled as a result of non-payment of charges by the Client.
4.5 Everybodysmile will register and renew domain names at the request of the Client. Domain names are registered for a minimum of 1 year, and the costs will vary depending on the top-level-domain. All charges for domain names managed by Everybodysmile are added to the Client’s account and payable by direct debit, unless alternative arrangements are agreed between Everybodysmile and the Client.
4.5.1 Everybodysmile will auto-renew domain names where the Client is in regular contact with Everybodysmile, unless the Client has requested by email that the domain name should be left to lapse.
4.5.2 If Everybodysmile is unable to determine that the Client is still trading and has not received any communication from the Client, the domain name may be left to lapse at the renewal date. Everybodysmile will undertake to contact the Client to discuss arrangements before the domain name lapses but cannot guarantee the domain name will be renewed if the Client does not make return contact with Everybodysmile.
4.5.3 If the Client chooses to arrange any domain name registration or renewal directly via a Third Party, Everybodysmile will not be responsible for payment of registration or renewal fees. The Client will pay the Third Party directly for any renewal costs and should be aware of and act upon any reminders issued by the Third Party. Everybodysmile will not be liable for any loss of business if the Client allows the domain name to lapse which affects the provision of the website or email services.
4.6 As outlined in Clause 4.1.5, if ongoing annual or monthly renewal fees are due for additional software or product licences, these will be added to the Client’s account as and when they fall due. Payments for these are due by direct debit.
4.7 Where the Photographer requires use of a Proofing Gallery, charges will apply as follows;
4.7.1 All regular charges should be paid by Direct Debit or by debit or credit card unless agreed otherwise. Any special arrangements for payments by other methods will be agreed between Everybodysmile and the Client.
4.7.2 All standard charges for the Everybodysmile online proofing service relating to monthly tariffs, upload charges, commission fees and any other regular services not included in the tariff costs are confirmed on the Website.
4.7.3 The Photographer is required to choose a payment tariff at the time of application and provide Direct Debit details within 14 days of the proofing account being made available for use.
4.7.4 If the Photographer has opted for a payment arrangement which means that the uploads added to the system are always subject to a fee, upload credits must be purchased in advance.
4.8 Everybodysmile offers a secure schools proofing service for use by any Photographer, incorporated into an existing proofing account. Should the Photographer require a bespoke design for any proof sheet, Everybodysmile will charge a fee to design and/or install this for use in the proofing account. The charge will be added to the Photographer’s next monthly invoice for payment by direct debit.
4.8.1 A free proof sheet template is available for any Photographer that does not wish to pay the fee.
4.9 The Photographer is permitted to switch between tariffs no more than once per calendar year. The request to change must be sent in writing and acknowledged by Everybodysmile. Changes of this nature will not be backdated and will take effect from the first of the following month or later where a specific date is requested by the Photographer.
4.10 All additional monthly tariff charges payable to cover increased storage capacity can be cancelled with effect from the end of the month in which the notice is received. The Photographer is required to delete sufficient uploads to reduce storage to a level within the standard limit, otherwise Everybodysmile will continue to levy tariff charges at the higher rate to cover the increased storage capacity available.
4.11 Everybodysmile shall issue an invoice at the start of every calendar month which details all transactions (charges and payments received) for the whole of the previous calendar month. Where agreed between Everybodysmile and the Client that payments can be made by alternative means to direct debit, these payments shall be due within 21 days of the date of the invoice.
4.11.1 Where Everybodysmile issues an invoice for an account where the Client has previously registered direct debit details, Everybodysmile will advise the Client by email the date and amount of the payment to be collected. There will be at least 14 days’ notice for payment, unless special arrangements are agreed between Everybodysmile and the Client.
4.12 Everybodysmile shall retain the right to charge arrears penalty fees in respect of late payment or failed direct debit payment for any sum due under these Terms and Conditions. The Client will be made aware of any charges before they are added to his account, and be given an opportunity to repay the outstanding amount before incurring such fees.
4.13 Where services have been suspended due to non-payment, Everybodysmile shall insist on complete repayment of arrears before full services are restored. In instances where payments are not already being made by Direct Debit, Everybodysmile shall be entitled to receive a completed Direct Debit mandate to enable automated repayment of the outstanding debts and may choose to request advance payments up to or equal to the following 3 months’ tariff charges.
4.14 In cases of persistent non-payment, Everybodysmile shall be entitled to seek assistance from a third party in recovering outstanding debts. The Client will be liable for any additional costs incurred from instructing such a company.
4.16 Invoices are sent within the first 14 days of the start of the following month. If there is any reason why Everybodysmile is unable to meet this 14 day deadline, the Client shall be contacted by email at the earliest possible opportunity.
4.17 If the Client requires the return of any documentation, prints or other media, Everybodysmile shall pass the actual cost for postage of these items onto the Photographer and this will be included in the monthly invoice. All items will be returned by Royal Mail Recorded Delivery unless agreed otherwise. If the Client posts any items to Everybodysmile for which the postage costs are underpaid, Everybodysmile reserves the right to pass on to the Client the full handling and underpayment charge levied by the Royal Mail. As Everybodysmile offers alternative methods of accepting images and documents, it is not absolutely necessary to forward these by post.
4.18 Everybodysmile shall be entitled to alter the level of any charges at any time. Any alteration to the charges relating to the Services will be subject to a notice period of two calendar months and will commence on the 1st day of the month following the completion of this notice period. Notices will be issued in accordance with Clause 17 of these Terms and Conditions.
5. ONLINE PROOFING IMAGE STORAGE
5.1 Amazon Web Services (AWS) provide the platform for the storage and delivery of all online proofing images.
5.2 Amazon quote a data redundancy level of 99.999999999% durability and therefore no back-ups will be made of any images stored within this facility.
5.3 Our image storage facility provides online storage but this should not be relied upon as The Photographer’s sole source of image backup. The Photographer should continue to make their own back-up arrangements.
5.4 Our high resolution image facility provides the photographer with an option to allow free or paid for downloadable files from our servers. All download links are available for a finite period. If the upload is held in the photographer’s account, links can be reset by the photographer. If the photographer has deleted an upload or the account has been closed the links will cease to work.
5.5 Everybodysmile make no warranties or representations that the Service will be uninterrupted or error-free and we shall not, in any event, be liable for interruptions of Service or downtime of the server or loss of any data.
6. VAT
6.1 The Charges for all website build fees, tariffs, commission, upload fees and other costs as advertised on the Everybodysmile website are exclusive of VAT, which is charged at the prevailing UK rate.
7. SERVICE LEVELS
7.1 Everybodysmile shall use its reasonable endeavours to make the server and the Services available to the Photographer at all times but because the Services are provided by means of computer and telecommunications systems, Everybodysmile makes no warranties or representations that the Service will be uninterrupted or error-free and Everybodysmile shall not, in any event, be liable for interruptions of Service or downtime of the server.
7.2 Everybodysmile shall use its reasonable endeavours to make the Client’s website and associated services available to the Client at all times but because the Services are provided by means of computer and telecommunications systems, Everybodysmile makes no warranties or representations that the Service will be uninterrupted or error-free and Everybodysmile shall not, in any event, be liable for interruptions of Service or downtime of the server.
8. ACCEPTABLE USE POLICY
8.1 Where Everybodysmile is engaged to provide website design, hosting and/or email services, these services may be used for lawful purposes only and the Client may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Client agrees not to:
8.1.1 Use the hosting provided by Everybodysmile in any way to send unsolicited commercial email or “spam”, or any similar abuse;
8.1.2 Send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities;
8.1.3 Publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights, via the Client’s own website or hosting;
8.1.4 Threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
8.1.5 Engage in illegal or unlawful activities through the Client’s own website or hosting;
8.1.6 Make available or upload files to the hosting which he knows contain a virus, worm, trojan or corrupt data; or
8.1.7 Obtain or attempt to obtain access, through whatever means, to areas of Everybodysmile’s network or any services which are identified as restricted or confidential.
8.2 In addition to Clauses 8.1 above, the Photographer agrees not to:
8.2.1 Use the Services provided by Everybodysmile in any way to send unsolicited commercial email or “spam”, or any similar abuse;
8.2.2 Use the Services to send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities;
8.2.3 Make available or upload files to the online proofing account which he knows contain a virus, worm, trojan or corrupt data;
8.2.4 Publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights, via the Services
8.2.5 Engage in illegal or unlawful activities through the Services
8.3 The Client has full responsibility for the content of their own website. For the avoidance of doubt, Everybodysmile is not obliged to monitor, and will have no liability for, the content of any communications transmitted via the hosting.
8.3.1 This responsibility also extends to any Photographer’s proofing account. For the avoidance of doubt, Everybodysmile is not obliged to monitor, and will have no liability for, the content of any communications transmitted by virtue of the Services.
8.4 Everybodysmile shall be entitled to forward any images displayed on the Client’s Website (together with their personal details if required) to the police or other regulatory authorities where requested by them to do so, or to a third party where instructed to do so by court order.
8.4.1 Where requested by the Third Party outlined in Clause 8.4, Everybodysmile will also be entitled to forward any images which the Photographer has added to their online proofing gallery account.
8.5 If Everybodysmile is made aware of any issues relating to the installation of software on any website which is hosted by Everybodysmile, in particular where the Client or a Third Party has installed any product which is affecting the performance of the hosting account or website, Everybodysmile will advise the Client immediately and depending on the severity of the issues, may temporarily disable the hosting account, website or remove the software until any problems are resolved.
8.6 If the Client fails to comply with the Acceptable Use Policy outlined in Clause 8, Everybodysmile shall be entitled to withdraw all services which it has been engaged to provide and terminate the Photographer’s account.
9. ALTERATIONS AND UPDATES
9.1 Alterations to the Client’s website can be made via a login specifically provided for access to the administration area for their website. The Client will be given a login once the website is live and will have access to a content management area. The Client is able to update their own website at any time.
9.1.1 The Client must take all reasonable steps to maintain the confidentiality of this login access. If the Client reasonably believes that this information has become known to any unauthorised person, the Client agrees to immediately inform Everybodysmile and the login details will be changed.
9.1.2 The Client is responsible for the security of passing any login access details to any Third Party engaged directly by the Client to make updates or add in functionality to their website. Everybodysmile is not responsible for any changes to the website design or any loss of business which results from any changes made by a Third Party.
9.1.3 In the event that Everybodysmile is requested by the Client to make any changes to the website subsequent to any Third Party involvement, Everybodysmile reserves the right to charge for any work required to make good the Client’s website.
9.1.4 Where the Client has directly added any updates or installed any additional software, without the advice of Everybodysmile, or engaged a Third Party to update a website, Everybodysmile reserves the right to temporarily disable any hosting provision or website in accordance with Clause 8.5.
9.2 Alterations and updates to the Client’s website may also be made at any time by contacting Everybodysmile. Depending on the scale of work required, any work may be subject to a fee, see Clause 3.13.
9.3 Alterations and updates to the online proofing account may be made by the Photographer using the online administration facility. The Photographer will be issued with a user name and password in order to access the Administration Area of the Website.
9.3.1 Alterations and updates to the Photographer’s online proofing gallery may also be made by contacting Everybodysmile. In most cases, these changes will be made free of charge, however all requests will be reviewed depending on the scale of work and if the Photographer is able to make these changes directly. Any work may be subject to a fee and if applicable the photographer will be advised before any work is undertaken.
9.4 If the Client account is currently in arrears or Everybodysmile is awaiting payment of invoices which are overdue, Everybodysmile may disable account logins and may withhold action to implement any updates or changes until the account balance is fully repaid.
10. WARRANTIES
10.1 The Client warrants and represents to Everybodysmile that Everybodysmile’s use of the Client’s text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the Client’s website (“the Content”) and/or the Photographer’s online proofing account in accordance with this agreement will not infringe the intellectual property rights of any third party and that the Client has the authority to license the Content to Everybodysmile as set out in Clause 3.5.
10.2 The Client warrants and represents to Everybodysmile that any elements of text, graphics, photos, designs, trademarks or other material supplied to Everybodysmile for inclusion in any website pages or online proofing account are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements and that Everybodysmile’s use of such material shall not infringe the intellectual property rights of any third party.
10.3 All conditions, terms, representations and warranties that are not expressly stated in these Terms and Conditions, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, Everybodysmile shall not be liable to the Client as a result of any viruses introduced or passed on to the Client.
11. INDEMNITY
11.1 The Client agrees to indemnify and hold Everybodysmile and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against Everybodysmile arising out of any breach by the Client of these Terms and Conditions or other liabilities arising out of or relating to any services provided by Everybodysmile.
12. LIMITATION OF LIABILITY
12.1 Nothing in these terms and conditions shall exclude or limit Everybodysmile’s liability for death or personal injury resulting from Everybodysmile’s negligence or that of its employees, agents or sub-contractors.
12.2 The entire liability of Everybodysmile to the Client in respect of any claim whatsoever or breach of this agreement, whether or not arising out of negligence, shall be limited to the charges paid for all services under this agreement in respect of which the breach has arisen.
12.3 In no event shall Everybodysmile be liable to the Client for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or Everybodysmile had been made aware of the possibility of the Client incurring such a loss.
13. TERM AND TERMINATION
13.1 This Agreement will be effective for all existing Clients from 1st October 2024, replacing the previous Terms & Conditions in use.
13.1.1 Any existing Clients that hold an Everybodysmile account prior to 1st October 2024 who prefer to close their account rather than conduct their account subject to these new Terms & Conditions, can close their account by 30th September 2024. All services will be withdrawn or cancelled and no further charges payable. Any Client who wishes to close their account on this basis, must confirm their request by email by Monday 23rd September 2024.
13.2 This Agreement will continue until terminated by either party by giving at least 1 calendar month’s notice in writing of its intention to terminate the Agreement. This notice can be sent by email or post.
13.3 The application for an online proofing account may be withdrawn by the Photographer within 24 hours of the form being submitted. The Photographer must email Everybodysmile within this 24 hour period to confirm their request to cancel the application. If this does not occur, Everybodysmile will assume that the Photographer wishes to proceed with the account and online proofing website and accepts the charges due based on the tariff selected by the Photographer at the time of application.
13.4 The Client shall have the right to terminate this Agreement at any time by notice in writing by email to Everybodysmile and any payments in respect of charges levied by Everybodysmile made prior to the date of termination shall not be refundable.
13.4.1 Where Everybodysmile has agreed payments may be made annually in advance rather than monthly, should the Client wish to terminate any services during the annual period, no pro-rata refund will be available for any period of unused services.
13.5 There is no fixed term to which the Photographer agrees when completing the application form and commissioning the Photographer’s online proofing account.
13.6 Usual payment terms will apply; there will be standard charges added to the account for any tariffs, upload fees or commission charges if orders are received during the notice period.
13.7 The Photographer agrees to ensure that any outstanding monies are repaid to Everybodysmile within 21 days of the end of the notice period in accordance with any invoice issued by Everybodysmile.
13.7.1 Everybodysmile will issue a closing invoice which will confirm any balance still due. If Everybodysmile holds details provided by the Photographer for a direct debit, the final payment due will be confirmed by email when Everybodysmile acknowledges the closing date.
13.7.2 A final statement confirming the closed balance will be emailed to the Photographer.
13.7.3 Once the Photographer’s account balance is clear and notice period served, Everybodysmile will delete any images not previously deleted by the Photographer directly.
13.7.4 Once the Photographer’s account balance is clear and notice period served, all login access to the online proofing account will be disabled. Therefore, the Photographer should ensure that any details or copy documents required from the account are collected or downloaded prior to the closure of the account.
13.8 Everybodysmile shall have the right to terminate this Agreement with immediate effect if the Client fails to make any payment when it becomes due. Action which may be taken by Everybodysmile in terms of recovery of outstanding payments is set out in Clause 4.
13.9 Unless this Agreement has been terminated due to reasons set out in Clauses 13.8, the termination notice can be reversed at any point during the agreed period if acceptable to both parties.
13.10 Either party may terminate this Agreement forthwith by notice in writing by email to the other if:
13.10.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
13.10.2 The other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
13.10.3 The other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
13.10.4 The other party ceases to carry on its business or substantially the whole of its business; or
13.10.5 The other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13.11 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
14. ASSIGNMENT
14.1 Everybodysmile may assign or otherwise transfer this Agreement at any time.
14.2 The Photographer may not assign or otherwise transfer this Agreement or any part of it without Everybodysmile’s prior written consent.
15. FORCE MAJEURE
15.1 Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any Internet Service Provider, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
16. SEVERANCE
16.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
17. NOTICES
17.1 Any notice to be given by either party to the other must be sent by email to the email address of the other party. The email address for Everybodysmile is as indicated in clause 1.1.15. Where Everybodysmile contacts the Client, the email address used will be as saved in the Client’s login or such other email address as used by the Client from time to time and shall, unless the contrary is proved, be deemed to be received on the day it was sent.
18. ENTIRE AGREEMENT
18.1 This Agreement contains the entire Agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Any issues relating to updated Terms and Conditions within this Agreement must be raised by the Client within one month of any updated notice, which from immediate effect will be issued by email notification. A copy of the updated Agreement can be provided by post upon request, and this Agreement is also available to view via the Everybodysmile administration login page at any time.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English court.
Last updated: 1st October 2024