PHOTOGRAPHER 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. “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 from the Everybodysmile online proofing service;
1.1.4. “Goods” means the articles that the Customer agrees to buy via the Everybodysmile proofing system.
1.1.5. “Contract” means the contract between Everybodysmile and the Customer for the sale and purchase of Goods;
1.1.6. “downtime” means any service interruption in the availability to visitors of the Website;
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, uploading of images, high resolution image facility, online payment administration and handling, 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. “visitor” means a third party who has accessed the Website;
1.1.13. “the Website” means www.everybodysmile.co.uk, www.everybodysmile.com, www.everybodysmile.biz, and www.everybodysmile.net;
1.1.14. “the Photographer’s Website” means the online proofing website provided by Everybodysmile to the Photographer;
1.1.15. “Working days” refers to the weekdays Monday – Friday, not including weekends and public holidays;
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.
2. INTRODUCTION
2.1 The Photographer wishes to establish an internet website provided by Everybodysmile which will be used to display the Photographer’s ongoing work, which includes images and data for the purpose of making the images available for sale to Customers online. The website will be hosted on Everybodysmile’s servers and made accessible via the Internet.
2.2 In the instance where the Photographer makes an image available for online purchase and requires Everybodysmile to accept payment from the Customer for this, the ownership of that image will transfer in part to Everybodysmile for the sole purpose of selling that image online and receiving a commission fee in respect of the sale. Everybodysmile will have no other rights to the image and will be expressly forbidden from making any other use of the image without the prior consent of the Photographer. As soon as the image is removed from the Photographer’s Website or it is no longer available to purchase online, full ownership of the image will transfer back to the Photographer. There is no transfer of ownership in full or part if the Photographer uses their own merchant account to collect order payments.
2.3 Everybodysmile provides web hosting services and has agreed to host the Photographer’s online images and data upon the following terms and conditions.
2.4 Everybodysmile is engaged in business as a website and systems developer and has agreed to supply and manage an online proofing website for the Photographer and/or a stand-alone website for the purposes of advertising a Photographer’s business, upon the following conditions.
3. DUTIES
3.1 In consideration of the payments outlined in Clause 4, Everybodysmile shall provide to the Photographer the Services specified as follows:
3.1.1 A website allowing the Photographer to display their images and work via the internet, which includes the facility to sell these images (“the Goods”) online to Customers.The website shall either:
3.1.2 Be built to integrate with the Photographer’s existing website appearance and shall include links between the two; or
3.1.3 Be developed by Everybodysmile and deliver the graphical, technical and navigational design (“the Website Design”) as required by the template as indicated on Everybodysmile’s Website and chosen by the Photographer and confirmed on their application form.
3.2 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 Photographer at the time of application;
3.3 Subject to clause 3.3.4, 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 Photographer:
3.3.1 Full website, including all content, gallery and advertising pages: 28 – 42 days
3.3.2 Fully integrated online proofing website using the Photographer’s own existing website: 7 days
3.3.3 Basic site matching online proofing website: 2 working days
3.3.4 If there is any reason for this deadline not being met, Everybodysmile will contact the Photographer at the earliest opportunity to explain the reasons for the delay and request any additional information which may be required from the Photographer before the Photographer’s Website can be completed.
3.4 Where the Photographer 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 Photographer’s Website until final details have been agreed with the other suppliers.
3.5 In cases where Everybodysmile is required to replicate 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 Photographer with a temporary URL where the Website can be viewed and tested. If the Photographer 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 Photographer shall test the Website again on the same terms as above and if no further changes are requested by the Photographer, this shall be referred to as “successful completion”, and the photographer’s website and account will become live.
3.7 Risk of loss or damage of any kind to the Website, the software used, the content or the documentation related to it shall pass to the Photographer only upon successful completion.
3.8 In cases where the Photographer has arranged their own website hosting for any site built by Everybodysmile, it will remain the Photographer’s responsibility to check the provisions and compatibility of the hosting. Everybodysmile can provide web hosting for the Photographer’s website if required.
3.9 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:-
3.9.1. 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.
3.9.2 The ongoing payment handling facility which provides the Photographer with the ability to sell the Goods online, using a secure payment server.
3.10 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, based on the conditions of the tariff selected. 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:
3.10.1 The entire gallery will be deleted in full.
3.10.2 The Photographer can choose to switch to a monthly tariff to continue to maintain all online galleries.
3.10.3 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 instead. This supplement will be charged per upload, so the Photographer can choose to retain some complete uploads by way of the extension payment and allow others to be deleted if appropriate.
3.10.4 The Photographer can instead choose to retain a cover image per gallery at no further cost, which refers to the original gallery, but advises 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. This option is designed to maintain a more populated thumbnail gallery page without incurring further costs after the period has ended.
3.11 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.
3.12 All images forwarded to Everybodysmile for uploading to the online proofing system will be made available for viewing within 2 working days of receipt. This may exclude images received from Photographers who have outstanding arrears payable to Everybodysmile. If images are sent in a format which cannot be read or transferred to the website, Everybodysmile will contact the Photographer as soon as possible.
3.13 All postal uploads should be sent to Everybodysmile at the address provided in Clause 1.1.1. Where images are received on cd, Everybodysmile shall hold these in its possession for 3 calendar months, after which time, they will be securely destroyed. If the Photographer requires the return of any cds, they should indicate this when sending the cd(s) to Everybodysmile, or request the return by email as soon as possible. Original cds should not be sent since Everybodysmile does offer alternative methods of sending images for uploads, which means the Photographer can retain possession of original or sole copies of images.
3.14 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 or their client.
3.15 Everybodysmile shall consider all written requests by the Photographer to make amendments, enhancements or improvements to the Photographer’s Website. If it is possible for Everybodysmile to comply with the request, the work will be undertaken in agreement with the Photographer 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 Photographer in writing for agreement prior to commencement.
3.16 The Photographer shall ensure that all contact details provided to Everybodysmile are kept up-to-date, and will confirm any changes to postal or email addresses, telephone numbers or payment information in writing immediately.
3.17 Email confirmation of all purchases will be sent by Everybodysmile to the Photographer and the Customer.
3.18 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.
3.19 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 Customers. The lab will be determined by Everybodysmile and as this is an option, the Photographer is free to organise their own order fulfilment instead. 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.
3.20 In cases where the Photographer chooses to use Everybodysmile’s merchant account for the collection of order payments, a delivery policy of up to 28 days will apply to all orders. If the Photographer chooses to complete fulfilment of orders, the Photographer is entitled to quote a shorter delivery period to the customer if they wish, but every effort must be made to ensure all orders are fulfilled within the stated period. To avoid any disputes or issues concerning the non-delivery of Goods, the Photographer shall, where possible, obtain proof of delivery and make arrangements for adequate packaging and insurance of valuable items. In every instance where a delay in delivery is expected which results in the anticipated dispatch date exceeding that set out in the Delivery Policy as displayed on the Photographer’s Website, the Photographer shall notify Everybodysmile and the Customer at the earliest convenience with further information regarding dispatch. If there is any problem with an order where Everybodysmile has organised fulfilment with a lab, Everybodysmile will resolve the matter directly with the lab.
3.21 In instances where the Photographer chooses to use Everybodysmile’s merchant account for the collection of order payments and is organising fulfilment of orders, and the Customer has contacted Everybodysmile to claim not to have received the Goods in either an acceptable condition or that delivery has not been made whatsoever, Everybodysmile shall be entitled to request that duplicate Goods be sent to the Customer or refund the payment after investigation with the Photographer. If the Photographer does not respond to Everybodysmile within 72 hours of any delivery query, Everybodysmile shall assume the claim to be genuine and a continuing lack of response will result in the payment being refunded to the customer. Everybodysmile will reserve the right to return payment to the Customer for an incomplete order. This refund action will not be taken where Everybodysmile is liaising with the lab for fulfilment as they will be able to ensure a new order is dispatched where necessary.
3.22 Where the Customer cannot be held responsible for either damage to the Goods or non-delivery, the cost for producing duplicates and associated delivery charges shall be paid by the Photographer. If the payment for the order was collected via the Everybodysmile merchant account, and is subsequently refunded to the Customer, the full amount of the order payment will be applied to the Photographer’s account.
3.23 The Photographer will be aware that as they are fully responsible for completion of the order (unless the fulfilment option has been previously requested and agreed) they should ensure that the orders are completed or refunded in all cases. If the Photographer uses the fulfilment option and lab is required to re-print and re-send any missing orders, the cost will not be passed on to the Photographer.
3.24 In instances where the Photographer collects payment directly from the Customer for the Goods, Everybodysmile is unable to impose any delivery periods or policy as this is solely determined by the Photographer. Whilst the Photographer should bear in mind the appropriate distance selling guidelines, any refunds for disputed orders can only be settled between the Photographer and the Customer direct; Everybodysmile will not be part of any dispute as no payment has been collected by Everybodysmile from the Customer. Everybodysmile continues to recommend that all Photographers package all orders appropriately and ensure that delivery can be traced and/or guaranteed wherever possible.
3.25 Everybodysmile retains the right to contact any Customer directly to check that orders are being completed correctly, should there to be reason to assume that payments are being collected and orders are not being dispatched. This will only apply to orders where Everybodysmile has collected payments on behalf of the Photographers via their merchant account.
3.26 Repeated failure to fulfil orders from Customers when payment is made via the Everybodysmile merchant account, or non-contact with Everybodysmile and/or the Customer in order to resolve issues of non-fulfilment, will result in disablement of the Photographer’s website, either in part or completely, and this may be a permanent closure of the website if such issues remain unresolved. This will not apply to Photographer’s websites where payments is made directly from the Customer to the Photographer by some other method or the Photographer’s own merchant account.
4. CHARGES AND PAYMENT
4.1 The Photographer shall pay the Charges for the Services in accordance with the Terms of Payment as set out below:-
4.1.1 All standard charges relating to set-up fee, monthly tariffs, upload charges, commission fees and any other regular services not included in the tariff costs are confirmed on the Website.
4.1.2 All supplements to cover storage of high resolution images, extensions to pay per upload periods or general increased storage capacity for low resolution images will be due as appropriate. These charges are optional, based on the Photographer wishing to take up these facilities.
4.1.3 If the Photographer has opted for the Back Catalogue option with the Pay Per Upload tariff, to allow multiple uploads for a single fee within one month from the completion date, this charge will be due with payment of the set-up fee and included on the Photographer’s first invoice.
4.1.4 Everybodysmile reserves the right to request partial or full payment for the set-up fee prior to the Photographer’s website being made live. The set-up fee will be payable upon receipt of the first invoice. Depending on the work involved in building a full bespoke website or expanding the requirements of a standard design website, the cost of the website set-up fee may exceed the figures displayed on the Everybodysmile website. However, the cost for any complete website will be confirmed in advance of any work commencing so that the Photographer is able to agree costs prior to the site being built.
4.1.5 If the invoice for the set-up fee has been issued and remains unpaid, Everybodysmile reserves the right to offer an alternative method of viewing the completed pages rather than the temporary URL.
4.1.6 The Photographer is required to choose a payment tariff at the time of application and complete a standing order form to ensure regular payments are received.
4.1.7 Everybodysmile shall be entitled to alter the level of any charges at any time. Any alteration to the tariffs or commission fee 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.
4.1.8 Everybodysmile publishes the various methods for making payments within the Administration System, and will always confirm all methods upon request. All regular monthly charges should be paid by standing order unless agreed otherwise.
4.2 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.
4.3 All supplements to pay for high resolution image storage can be stopped at the request of the Photographer and this specific functionality will cease from the end of the paid-for period. Everybodysmile will not refund any payments (pro-rata or in full) already made in respect of using the High Resolution Image Facility.
4.4 All supplements payable to cover increased storage capacity can be cancelled with effect from the end of the month in which the notice is received. If the Photographer has not already deleted sufficient uploads to reduce storage to a level within the standard limit, Everybodysmile will delete the oldest uploads on the 1st day of the following month to reduce the number of images online. Once the number of images is within the lower agreed capacity, the standard tariff charges will apply with no supplements payable for extra storage.
4.5 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. All amounts payable to Everybodysmile in respect of services shall be due within 21 days of the date of the invoice.
4.6 Everybodysmile shall retain the right to charge arrears penalty fees in respect of late payment of any sum due under these Terms and Conditions. The Photographer 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.
4.7 In accordance with Clause 13.7, where services have been withdrawn due to non-payment, Everybodysmile shall insist on complete repayment of arrears before full services are resumed. In instances where payments are not already being made by standing order, Everybodysmile shall be entitled to receive a completed standing order mandate with repayment of the outstanding debts and may choose to request advance payments up to or equal to the following 3 months’ tariff charges.
4.8 In cases of persistent non-payment, Everybodysmile shall be entitled to seek assistance from a third party in recovering outstanding debts. The Photographer will be liable for any additional costs incurred from instructing such a company.
4.9 The set up fee is non-refundable.
4.10 Any monthly tariff payable is due on the 1st day of each month and covers the services provided during that month. Where an account is completed and made live during a month, Everybodysmile will contact the Photographer to confirm details for payment of the initial monthly tariff.
4.11 If the Photographer has opted for a payment arrangement which means that the uploads added to the system are always subject to a fee, charges for these will be included on the invoice statement for the month in which the upload was made.
4.12 All payments for ordered Goods made using the online proofing system and where the transaction is placed using the Everybodysmile merchant account are subject to a commission fee. Everybodysmile will deduct this charge before passing any payment to the Photographer, or invoice the Photographer should there remain a balance outstanding. Any refunded payments which are returned to the Customer are also subject to the same commission charge. To ensure the Customer receives the full and original amount of the payment, the commission fee is added to the Photographer’s account.
4.13 All payments received by Everybodysmile upon completion of a Contract for delivery of Goods will be passed to the Photographer in the month following receipt of the order. Where there remains a balance of monies owing to Everybodysmile, Everybodysmile shall use the payments from the orders received to reduce this debt. The Photographer shall only receive payments in respect of orders received if no monies are owing to Everybodysmile or if a balance is available once any arrears have been repaid.
4.14 Invoices and remittances for orders received 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 Photographer shall be contacted by email at the earliest possible opportunity.
4.15 If the Photographer requires the return of any documentation, prints or cds, 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 Special Delivery unless agreed otherwise. If the Photographer posts any items to Everybodysmile for which the postage costs are underpaid, Everybodysmile reserves the right to pass on to the Photographer the full handling and underpayment charge levied by the Royal Mail. As Everybodysmile offers alternative methods of accepting uploads, it is not absolutely necessary to forward uploads by post.
5. HIGH RESOLUTION IMAGE FACILITY
5.1 Amazon Web Services (AWS) provide the platform for the delivery of our high resolution image facility.
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 high resolution image facility provides online, high resolution storage but this should not be relied upon as The Photographers sole source of image backup. The Photographer should continue to make their own back-up arrangements.
5.4 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.
5.5 All fees are payable in advance unless specifically agreed otherwise between Everybodysmile and the Photographer.
5.6 Images will be stored within our high resolution facility for the duration of a purchased period, unless Everybodysmile has agreed an exception to this specifically with the photographer.
5.7 All high resolution images will be removed immediately upon expiry of the current purchased period unless a payment to extend the period has been received or specifically agreed with Everybodysmile prior to the expiry date.
5.8 Only high resolution images will be removed upon expiry of the purchase period; the upload will remain online and the low resolution images will remain available to Customers.
5.9 Images may be re-uploaded in the event of accidental deletion as long as this is within a purchased period.
5.10 The total number of images stored within the high resolution facility are included as part of the overall account allocation as provided by the monthly tariff currently in force.
6. VAT
6.1 The Charges for monthly 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.
6.2 The Photographer will advise Everybodysmile of their VAT registration status and details and any change in respect of whether they are registered for VAT or not should be confirmed at the earliest opportunity. In cases where Everybodysmile collects payments for ordered Goods on behalf of the Photographer, and the Photographer is VAT registered, Everybodysmile shall issue a self-billing invoice which will detail the full orders received for the Photographer’s work during the previous calendar month. This will act as a replacement for the invoice which would be issued by the Photographer to Everybodysmile to confirm the income from the sale of images which is required by HM Customs & Excise.
6.3 All Photographers who are using the Everybodysmile merchant account to collect payments for orders and are VAT registered must complete the Self-Billing Agreement issued by Everybodysmile. A copy is available upon request. If the Photographer does not make use of the Everybodysmile merchant account for order payments, the self-billing agreement does not apply.
6.4 By completing this document in accordance with this Agreement, the Photographer agrees to accept invoices raised by Everybodysmile on their behalf for the whole period during which the Photographer uses the system, unless their VAT registration status alters. The Photographer also agrees not to raise sales invoices for the orders placed online as detailed within this Agreement.
6.5 By adopting a self-billing policy and joining in this document with the Photographer, Everybodysmile agrees to issue self-billed invoices for all orders placed online using the system for the whole period during which the Photographer uses the system or until their VAT registration status changes. Everybodysmile will complete a self-billed invoice showing the Photographer’s name, address and VAT registration number, together with all the other details which constitute a full VAT invoice.
6.6 In any instance where the Photographer’s registration number changes, Everybodysmile will be advised as soon as possible so that a new Self Billing Agreement with the up-to-date details may be drawn up.
6.7 Any Photographer who is not VAT registered or becomes deregistered, must not complete the Self Billing Agreement or must give notice in writing that it is no longer valid.
6.8 Everybodysmile and the Photographer must retain a written or electronic copy of the document which will be signed by both parties.
6.9 Further information can be found at the HM Revenue & Customs website at www.hmrc.gov.uk, under Notice 700/62. The law on Self Billing is in the Value Added Tax Act 1994, sections 6(9) and 29 and in the Value Added Tax (Amendment) (No 6) Regulations 2003.
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.
8. ACCEPTABLE USE POLICY
8.1 The Website and use of the Services may be used for lawful purposes only and the Photographer may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Photographer agrees not to:
8.1.1 Use the Services or the Website in any way to send unsolicited commercial email or “spam”, or any similar abuse of the Services;
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 Services or on the Website;
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 Services or via the Website;
8.1.6 Make available or upload files to the Website or to the Services that the Photographer 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 the Services which are identified as restricted or confidential.
8.2 The Photographer has full responsibility for the content of their Website. 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.
8.3 Everybodysmile shall be entitled to forward any images displayed on the Photographer’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 If the Photographer fails to comply with the Acceptable Use Policy outlined in Clause 8 Everybodysmile shall be entitled to withdraw the Services and terminate the Photographer’s account.
9. ALTERATIONS AND UPDATES
9.1 Alterations and updates to the Website 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. The Photographer must take all reasonable steps to maintain the confidentiality of this user name and password. If the Photographer reasonably believes that this information has become known to any unauthorised person, the Photographer agrees to immediately inform Everybodysmile and the password will be changed.
9.2 Alterations and updates to the Website may also be made by contacting Everybodysmile. Any work may be subject to a fee, see Clause 3.15.
10. WARRANTIES
10.1 The Photographer warrants and represents to Everybodysmile that Everybodysmile’s use of the Photographer’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 Website (“the Content”) in accordance with this agreement will not infringe the intellectual property rights of any third party and that the Photographer has the authority to license the Content to Everybodysmile as set out in Clause 3.5.
10.2 The Photographer warrants and represents to Everybodysmile that any elements of text, graphics, photos, designs, trademarks or other material supplied to Everybodysmile for inclusion in the Website are owned by the Photographer, or that the Photographer 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 Photographer as a result of any viruses introduced or passed on to the Photographer.
11. INDEMNITY
11.1 The Photographer 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 Photographer of these Terms and Conditions or other liabilities arising out of or relating to the Website.
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 Photographer 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 the Services under this agreement in respect of which the breach has arisen.
12.3 In no event shall Everybodysmile be liable to the Photographer 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 Photographer incurring such a loss.
13. TERM AND TERMINATION
13.1 This Agreement will become effective upon receipt at Everybodysmile’s offices of the completed online application form from the Photographer and shall 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.
13.2 The application 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.
13.3 There is no fixed term to which the Photographer agrees when completing the application form and commissioning the Photographer’s Website.
13.4 The Photographer shall have the right to terminate this Agreement at any time by notice in writing to Everybodysmile and any payments in respect of charges levied by Everybodysmile made prior to the date of termination shall not be refundable.
13.5 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.
13.6 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. Everybodysmile will issue a closing invoice which will confirm any balance still due or remittance cheque in respect of orders received, if any.
13.7 Everybodysmile shall have the right to terminate this Agreement with immediate effect by notice in writing to the Photographer if the Photographer 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.
13.8 Everybodysmile shall have the right to terminate this Agreement with immediate effect if the Photographer is found to be accepting monies from Everybodysmile in respect of orders for Goods but not completing the Contract through not dispatching the Goods to the Customer. In cases where such a situation occurs, Everybodysmile will retain any monies received from other orders until the Customer provides confirmation that the Goods have been received.
13.9 Unless this Agreement has been terminated due to reasons set out in Clauses 13.7 and/or 13.8, the termination notice can be reversed at any point during the agreed period if acceptable to both parties. If the Photographer wishes to reinstate their Website after this notice period has elapsed, administration charges may apply, which may be equal to the set-up fee charged to new Photographers at the time of reinstatement, and there may be restrictions on the number of uploads which can be made re-available for viewing.
13.10 Either party may terminate this Agreement forthwith by notice in writing 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 may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall, unless the contrary is proved, be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served 2 days following the date of posting.
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 Photographer 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 in writing upon request, and this Agreement is also available to view via the Everybodysmile website 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.
