Terms of service
Please read these Terms of Service (“Terms”) carefully – by accessing or making any use of Pic of the Bunch, you are agreeing to them. You also agree to our Privacy Policy, which sets out how we deal with Pic of the Bunch users’ personal information and privacy.
Agreement
This Agreement is made between:
1. MJ McGarrity Ltd (trading as Pic of the Bunch), a company incorporated in England and Wales with registered number 15455794 whose registered office is at 6 Aspen Drive, Leeds, LS14 3DT (the Photographer); and
2. You (the Client)
Meanings
1. In this Agreement, the following words are defined:
Agreement - this agreement for the provision of the Services (as defined below) including any schedules;
Engagement - the engagement of the Photographer by the Client on the terms of this Agreement;
Deliverables - all photographs, negatives, videos and other materials provided by the Photographer, in whatever form, including but not limited to hard copy and electronic form, which are developed, created, prepared or devised by the Photographer in the provision of the Services to the Client;
Intellectual Property Rights - any invention, patent, utility model right, copyright and related right, registered design, unregistered design right, trade mark, trade name, internet domain name, design right, design, service mark, database rights, topography rights, rights in get-up, rights in goodwill or to sue for passing off and any other rights of a similar nature or other industrial or intellectual property rights owned or used by the Photographer in any part of the world whether or not any of the same is registered (or capable of registration), including applications and the right to apply for and be granted, extensions or renewals of, and rights to claim priority from, such rights and all equivalent or similar rights or protections which subsist now or will subsist in the future;
On-Site Photographer - the individual or company assigned by the Photographer to shoot the photographs on behalf of the Photographer;
Order - the Client's request for the Photographer’s Services;
Order Confirmation - the Photographer’s acceptance of the Client's Order;
Package - the number, type, price and other matters in relation to the photographs and services, as detailed on the Photographer’s website;
Services - the services to be provided by the Photographer in a photographer capacity for the Client as described in the section entitled 'Provision of Services';
Shoot - when the Photographer will take the photographs;
Stated Purpose - to use the photographs only for personal purposes. Commercial use of any kind is prohibited without the prior written agreement of the Photographer.
2. In this Agreement, unless the context requires a different interpretation:
a. the singular includes the plural and vice versa;
b. references to sub-clauses, clauses, schedules or appendices are to sub-clauses, clauses, schedules or appendices of this Agreement;
c. a reference to a person includes firms, companies, government entities, trusts and partnerships;
d. "including" is understood to mean "including without limitation";
e. reference to any statutory provision includes any modification or amendment of it;
f. the headings and subheadings do not form part of this Agreement; and
g. "writing" or "written" will include fax and e-mail unless otherwise stated.
Provision of Services
3. The Photographer shall provide the following Services to the Client:
a. Portrait photography services.
4. The Deliverables are to be sent to the Client within a reasonable period of time of the Shoot taking place and, in any event, within thirty (30) calendar days, through online file sharing. The Photographer shall keep the Deliverables for a minimum of one (1) month.
5. The Deliverables to be provided will be based upon the Package the Client chooses, as detailed on the Photographer’s website at the time of the Order. This will be detailed in the Order Confirmation.
6. The Services will be provided by the Photographer or On-Site Photographer.
7. The Shoot is to take place at the time stated in the Order Confirmation.
8. The Photographer will provide the Services at locations stated in the Order Confirmation.
9. The Photographer shall perform the Services with reasonable care and skill, in accordance with:
a. generally recognised commercial practices and standards; and
b. all laws and regulations applicable to the Services, including all laws and regulations related to (i) anti-bribery and corruption, and (ii) data protection.
10. 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.
11. For the avoidance of doubt, 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. The On-Site Photographer will do his/her best to honour requested photographs but shall not under any circumstances warranty or guarantee any specific picture nor incorporate any specific background or location.
12. The On-Site Photographer will take as many photographs as they deem appropriate with a view to providing the best choice when processing and preparing the final photographs to be delivered to the Client. The number of photographs taken during the Shoot will not affect the Fee payable and the final number delivered to the Client will be determined by the chosen Package.
13. The Photographer is not responsible if the Client fails to appear or cooperate during the Shoot, nor for missed or unsatisfactory images due to the Client not providing an adequate brief to the Photographer prior to the date of the Shoot.
14. The Photographer will use reasonable efforts to remedy any problems with the Services as quickly as is reasonably possible and practical. The Photographer will reshoot, for the same fee less a 25% discount, in the unlikely event that:
a. the Client is completely dissatisfied with the final results of the Shoot; and,
b. this dissatisfaction is based solely on the Client's personal preference and subjective opinion; and,
c. all reasonable attempts at a compromise have been attempted.
15. Where a second or further Shoot(s) are booked pursuant to this clause, the Client will be permitted to make use of prints from the second (or subsequent) Shoot only.
16. The Photographer will not charge the Client for remedying serious deficiencies or defects in Photographs where the deficiencies or defect(s) are not related to anything the Client has or has not done. If the Photographer determines that the problem has been caused by any action or omission on the Client's part, the Photographer may charge the Client a reasonable sum for remedial work required.
17. Any claim the Client makes as to an alleged defect in or dissatisfaction with the photographs or services provided must be received by the Photographer within five (5) days of the Client's receipt of the photographs, accompanied by a written description specifying the defect or the cause or the dissatisfaction. As to any photographs or services provided for which a written claim has not been made within the five (5) day period permitted under this section, such photographs or services shall be conclusively deemed conforming in all respects to the Agreement and accepted by the Client.
18. The foregoing warranties are in lieu of all other warranties and the 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 the Photographer, other than Michael McGarrity, is authorised to make any warranty in addition to the foregoing.
Term
19. 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. The Client's 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.
20. Order Confirmations will be provided in writing, normally in the form of an automatically generated e-mail to the Client at the e-mail address given in the Order. A legally binding contract will be created when the Photographer sends to the Client by email the Order Confirmation upon terms described therein.
21. The Agreement begins on the date of the Order Confirmation and will continue until the completion of the Services or until notice is given in accordance with the procedure set out in the section entitled 'Rescheduling and Cancellation'.
Fees
22. The Client is responsible for the payment of fees. The Photographer will charge the Client for the Services at the rate stipulated in the Order Confirmation (the Fee).
23. The Client must make payment at the time of placing the Order or within a maximum of forty-eight (48) hours of placing the Order, failing which the Order will be deemed cancelled. Payment must be made through an 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 provision of the Services.
24. Any Deliverables additional to those stipulated in the Order Confirmation will be invoiced separately and will require payment by the Client in full prior to delivery.
Expenses
25. The Photographer is responsible for all reasonable costs associated with the provision of the Services.
26. The Client must provide their own clothing, non-photographic equipment and props if desired. Neither the Photographer nor the On-Site Photographer will provide these.
Rescheduling and Cancellation
27. The Client may reschedule or cancel the Services for any reason within 12 months of the date of the Shoot. However, the following shall apply to rescheduling:
a. if the Client reschedules the Shoot for any reason less than twenty-four (24) hours prior to the date of the Shoot, a surcharge of 50% of the original agreed fee shall be payable to cover the Photographer’s costs;
b. if the Client reschedules the Shoot more than three (3) times, the Client will forfeit all sums paid.
28. The following shall apply to cancellation:
a. if the Client cancels the Shoot (and the Agreement) more than seventy-two (72) hours prior to the date of the Shoot, the Photographer will refund all sums paid;
b. if the Client cancels the Shoot less than seventy-two (72) hours but more than twenty-four (24) hours prior to the date of the Shoot, the Photographer will, at the Client’s discretion:
i. retain all sums paid, and such sums shall count as partial payment towards the rescheduled Shoot; or,
ii. refund to the Client half of the fees paid.
c. if the Client cancels the Shoot less than twenty-four (24) hours prior to the date of the Shoot, the Photographer will retain all sums paid.
29. We do not provide refunds if the Client is late for the Shoot.
30. Any and all refunds due will be paid to the Client as soon as is reasonably possible, and in any event within fourteen (14) calendar days of the Photographer’s acceptance of the Client’s cancellation notice.
31. The Photographer may cancel the Shoot for any reason at any time up to twenty-four (24) hours prior to the date of the Shoot. If the Client has made any payment to the Photographer, those sums will be refunded to the Client within fourteen (14) calendar days of the Photographer’s notification to the Client of cancellation.
32. If, at the Photographer’s sole discretion, it is not possible for a session to take place on a scheduled day due to weather, the Photographer will contact the Client by 6pm on the day prior to the date of the Shoot to reschedule the Shoot, with no additional charge to the Client.
Force Majeure
33. 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/pandemic or other natural disaster, or any other event that is beyond the Photographer’s or the On-Site Photographer’s reasonable control.
34. If any such event described under clause 33 occurs that is likely to adversely affect the Photographer’s performance of his/her obligations under this Agreement:
a. the Photographer will inform the Client as soon as is reasonably possible;
b. the Photographer’s obligations under this Agreement will be suspended and any time limits that they are bound by will be extended accordingly (where such extension is reasonably possible);
c. the Photographer will inform the Client when the event outside of his/her reasonable control is over and provide any new dates, times or availability as necessary;
d. except in the case of sub-clause 34e below, if an event outside of the Photographer’s reasonable control occurs and the Client wishes to cancel the Agreement, the Client may do so in accordance with their right to cancel under the Rescheduling and Cancellation clauses;
e. where the event occurs during the Shoot, the Photographer will be entitled to retain all fees paid and the Agreement shall be considered substantially performed by the Photographer.
35. Any refunds due to the Client as a result of that cancellation will be paid to the Client as soon as is reasonably possible, and in any event within fourteen (14) calendar days of the Photographer’s cancellation notice.
Liability and Insurance
36. Nothing in this Agreement limits or excludes either party’s liability for:
a. death or personal injury caused by its negligence; or
b. fraud or fraudulent misrepresentation or wilful default; or
c. liability under the indemnities contained in the section entitled 'Indemnity'; or
d. any other liability which cannot be limited or excluded by applicable law.
37. Subject to the preceding clause, neither party shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement, for:
a. loss of profits;
b. loss of sales or business;
c. loss of agreements or contracts;
d. loss of anticipated savings;
e. loss of or damage to goodwill;
f. loss of use or corruption of software, data or information;
g. any indirect or consequential loss.
38. Subject to the two preceding clauses, the total liability of the Photographer for any other loss of the Client in respect of any one event or series of connected events shall not exceed 110% of the total amount paid by the Client to the Photographer.
39. During this Agreement, the Photographer shall maintain in force with a reputable insurance company insurance sufficient to indemnify risks for which they may be responsible, including for their respective sub-contractors, agents and employees, in connection with the Services, and shall, on either party’s request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.
Intellectual Property
40. The entire copyright in the Deliverables, including ownership of all materials embodying these rights to the fullest extent permitted by law, is retained by the Photographer at all times throughout the world.
41. The Photographer grants the Client a royalty-free, exclusive, perpetual worldwide licence of all existing and future Intellectual Property Rights in the Deliverables and all materials for the Stated Purpose.
42. Insofar as they do not vest automatically by operation of law or under this Agreement, the Photographer holds legal title in these rights on trust for the Client.
43. The licence comes into effect from the date of payment of the Fees.
44. No use may be made of the Deliverables without the Photographer’s permission until after payment of the Fees is made in full. Any permission that may be given for prior use of the Deliverables will be automatically revoked if full payment of the Fees is not made by the due date.
45. Where use of the Deliverables is restricted in the licence, permission to use the Deliverables for any purpose other than the Stated Purpose will be granted upon full payment by the Client of a further fee to be agreed with the Photographer.
46. The benefit of the licence shall not be assigned to any third party without the Photographer’s permission in writing.
47. Any changes required to the terms of the licence must be agreed with the Photographer in writing.
48. The Photographer reserves the right to use the Deliverables for advertising, display or for any other purpose not restricted to use in their portfolio.
Privacy
49. The Photographer respects the Client’s privacy and complies with the GDPR with regard to the Client’s personal information.
50. This Agreement should be read alongside and is in addition to the Photographer’s Privacy Policy, which can be found here: www.picofthebunch.com/privacypolicy.
51. For the purposes of this Agreement:
a. 'Data Protection Laws' means any applicable law relating to the processing of Personal Data, including, but not limited to, the GDPR.
b. 'GDPR' means the UK General Data Protection Regulation.
c. 'Personal Data' and 'Processing' shall have the same meaning as in the GDPR.
52. Where the Client supplies Personal Data to the Photographer for the provision of the Services and the Photographer Processes that Personal Data in the course of providing the Services to the Client, the Photographer will comply with the obligations imposed by the Data Protection Laws. The Photographer's compliance will involve, but is not limited to:
a. before or at the time of collecting Personal Data, the Photographer will identify the purposes for which information is being collected;
b. the Photographer will only Process Personal Data for the purposes identified;
c. the Photographer will respect the Client’s rights in relation to Personal Data;
d. the Photographer will implement technical and organisational measures to ensure the Client’s Personal Data is secure; and
e. the Photographer will assist the Client in ensuring compliance with the obligations relating to the security of Processing of Personal Data, the notification of Personal Data breaches to the relevant supervisory authority (as defined in the GDPR), the communication of Personal Data breaches to the data subject, and data protection impact assessments (as defined in the GDPR).
53. For any enquiries or complaints regarding data privacy, the Client can email the Photographer at michael@picofthebunch.com.
General
54. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, arrangements or agreements that might have taken place in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
55. No party may assign, transfer or sub-contract to any third party the benefit and/or burden of the Agreement without the prior written consent (not to be unreasonably withheld) of the other party.
56. No variation of the Agreement will be valid or binding unless it is recorded in writing and signed by or on behalf of both parties.
57. The Contracts (Rights of Third Parties) Act 1999 does not apply to the Agreement and no third party has any right to enforce or rely on any provision of the Agreement.
58. Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
59. A provision which by its intent or terms is meant to survive the termination of the Agreement will do so.
60. If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
61. This Agreement is not an employment contract and nothing in the Agreement will establish any employment relationship between the Photographer and the Client.
62. Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing and delivered by pre-paid first class post to or left by hand delivery at the Photographer's registered address or place of business, or sent by email to the Photographer's main business email address: michael@picofthebunch.com. Notices:
a. sent by post will be deemed to have been received, where posted from and to addresses in the United Kingdom, on the second Working Day (which, for the purposes of this Agreement, means any day other than a Saturday, Sunday or public holiday in England and Wales) and, where posted from or to addresses outside the United Kingdom, on the tenth Working Day following the date of posting;
b. delivered by hand will be deemed to have been received at the time the notice is left at the proper address; and
c. sent by email will be deemed to have been received on the next Working Day after sending.
Governing Law and Jurisdiction
63. This Agreement will be governed by and interpreted according to English and Welsh law. All disputes and claims arising under the Agreement (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the English and Welsh courts.