These terms and conditions (“Terms and Conditions”) shall apply to the provision of any Services provided by Ria Mishaal Photography Ltd (Co. No. 08895996) registered address The Barn Meadow Court, Faygate Lane. Postal code: RH12 4SJ. (“Us/Our/We”).
By agreeing to enter into an agreement with Us for the provision of Services you agree to be subject to these Terms and Conditions.
Provisions for Consumers only:
Where you enter into an agreement for the provision of Services as a consumer via Our website or otherwise online you have the right to cancel the agreement within 14 days of purchase. If you are paying in instalments this is dated from the payment of the first instalment.
- Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
| “Business Day” | means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales; |
| “Confidential Information” | means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, these Terms and Conditions (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such); |
| “Data Protection Legislation | means 1) unless and until EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations, and secondary legislation (as amended from time to time), in the UK and subsequently 2) any legislation which succeeds the GDPR; |
| “Fee” | means the fee payable to Us for the Services; |
| “Intellectual Property Rights” | means (a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions; (b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a); (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and (d) the right to sue for past infringements of any of the foregoing rights; |
| “Services” | means the agreed services to be provided by Us to you subject to these Terms and Conditions. |
- Services
- You engage Us to provide the Services.
- We shall at all times be an independent contractor and Our activities and those of any staff engaged by Us on the Services are at all times under Our exclusive supervision, direction and control. You shall not supervise, direct or control Us or any staff engaged by Us nor shall you have any right to do so
- We shall at all times be exclusively responsible for organising where, when, how and in what order the Services are performed.
- The engagement under these Terms and Conditions is mutually non-exclusive and at any time We can provide to other clients services which are the same as or similar to the Services and you can engage other contractors to provide you with services which are the same as or similar to the Services.
- We in Our discretion for any reason on one or more occasions may substitute a replacement provided that they have the requisite skills and experience to perform the Services. We shall use all reasonable endeavours to avoid or minimise such changes and to consult with you beforehand.
- Whenever possible and practicable, We shall use Our own equipment, materials and resources to carry out the Services although the Services shall be delivered at your premises or at such other location as the parties may agree including online.
- The engagement and appointment of Us under these Terms and Conditions does not create any mutual obligations on the part of you or Us to offer or accept any further engagement and no continuing relationship shall hereby be created or implied.
- We shall use reasonable skill and care in providing the Services.
- Whilst We shall use reasonable endeavours to meet any agreed deadlines time shall not be of the essence for provision of the Services.[1]
- In the event of cancellation of an agreed session or series of sessions:
- By you: the usual Fee will be payable for any session(s) not yet undertaken; or
- By Us: no Fee will be payable for the cancelled session(s) save where the cancellation was a result of your actions.
2.11 For the avoidance of doubt, in the case of a 1-2-1 session you must turn up within 15 minutes of the scheduled time (or contact Us within this time to rearrange the scheduled time) failing which the usual Fee will be payable.
2.11 Coaching is by its nature dependant on your engagement and co-operation. No results are guaranteed and no refunds will be given unless agreed between the parties in advance (money back guarantee).
- Our Status
- We shall at all times be an independent contractor and shall be responsible for all income tax and national insurance contributions or similar taxes or contributions in respect of the consideration payable under these Terms and Conditions.
- We shall be responsible for all of Our expenses and value added tax.
- Nothing in these Terms and Conditions shall be deemed to create any partnership, joint venture, or agency between the Parties, or any employment relationship between you and Our staff.
- Consideration
- In consideration of the Services you shall pay to Us the Fee. All payments made under these Terms and Conditions shall be expressly exclusive of any value added tax chargeable thereon.
4.2 Payment of the Fee shall be due on receipt by you of Our invoice for the same. Where payment by instalment is agreed this is not to be treated as a membership which may be cancelled and all instalments must be paid. In the event of non-payment of an instalment, all outstanding amounts become immediately payable.
4.3 Any Fee which remains unpaid shall incur interest at the rate of 5% above the base rate of NatWest Bank plc. Interest shall accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment. Any interest due shall be payable when paying an overdue sum. In the event of debt collection services or proceedings being necessary you shall indemnify Us in respect of the same.
- In addition to clause 4.3, until full payment is made We reserve the right to cease to provide any further Services and shall not be liable for any losses arising from such ceased provision.
- For the avoidance of doubt, the agreed Fee is based on a fixed number of hours being allocated to the Services in question. In the event that a greater amount of time is spent in delivering the Services caused by delays by you in supplying any Required Information or materials, or by you changing the scope of any Services We reserve the right to charge an hourly rate for any additional work.
- Intellectual Property
5.1 We shall at all times retain ownership of the Intellectual Property in any materials produced in providing the Services.
5.2 In the event that you wish to acquire the Intellectual Property or a licence to use the same a request should be made to Us and we may at Our sole discretion (but We are not obliged to) agree to the transfer or licence on terms to be agreed in writing between the Parties.
5.3 You agree that We may freely and without charge use your images produced during the provision of the Services for Our promotional and future teaching purposes. Your copyright will be acknowledged.
- Liability
- This Clause 6 sets out the entire financial liability of the Parties to each other for any breach of these Terms and Conditions; for the supply by Us of the Services, any use made by you of the Services; and any representation, statement, or tortious act or omission (including, but not limited to, negligence and breach of statutory duty) arising out of or in connection with these Terms and Conditions.
- Subject to sub-Clause 6.3, neither Party shall be liable to the other, whether in contract, tort (including negligence), restitution, or for breach of statutory duty or misrepresentation for any loss of profit, loss of goodwill, loss of business opportunity, loss of anticipated saving, or any special, indirect or consequential damage or loss that may be suffered by the other Party that arises out of or in connection with these Terms and Conditions.
- Nothing in these Terms and Conditions shall limit the liability of either Party to the other for fraud or fraudulent misrepresentation, for deliberate or wilful misconduct, or for death or personal injury.
- Nothing in this Clause 6 shall limit any indemnities in these Terms and Conditions.
- The total liability of either Party arising out of or in connection with these Terms and Conditions (whether in contract, tort (including negligence), restitution, for breach of statutory duty or misrepresentation or otherwise) shall be limited to shall be limited to the Fee paid or payable by you under these Terms and Conditions for the 12 months immediately prior to the relevant cause of action arising.
- Confidentiality
- Both Parties undertake that, except as provided by sub-Clause 7.2 or as authorised in writing by the other Party, they shall at all times during the continuance of these Terms and Conditions and for 12 months after its termination:
- keep confidential all Confidential Information;
- not disclose any Confidential Information to any other party;
- not use any Confidential Information for any purpose other than as contemplated by these Terms and Conditions;
- not make any copies of, record in any way or part with possession of any Confidential Information; and
- ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 7.
- Subject to sub-Clause 7.3, either Party may disclose any Confidential Information to:
- any staff engaged by Us in providing the Services;
- any sub-contractors, substitutes, or suppliers; or
- any governmental or other authority or regulatory body.
- Disclosure under sub-Clause 7.2 may be made only to the extent that is necessary for the purposes contemplated by these Terms and Conditions, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential.
- Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
- When using or disclosing Confidential Information under sub-Clause 7.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
- For the avoidance of doubt, all coaching calls are recorded and these will be available to existing and future students of the course as a resource. For the purposes of this Clause 7 information included in the recorded calls are not treated as Confidential Information.
- The provisions of this Clause 7 shall continue in force in accordance with their terms, notwithstanding the termination of these Terms and Conditions for any reason.
- Both Parties undertake that, except as provided by sub-Clause 7.2 or as authorised in writing by the other Party, they shall at all times during the continuance of these Terms and Conditions and for 12 months after its termination:
- Data Protection
- In this Clause 8 and in these Terms and Conditions, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in Article 4, EU Regulation 2016/679 General Data Protection Regulation (“GDPR”).
- Both Parties shall comply with all applicable data protection requirements set out in the Data Protection Legislation. Neither this Clause 8 nor any other provisions of these Terms and Conditions shall relieve either Party of any obligations set out in the Data Protection Legislation and shall not remove or replace any of those obligations.
- For the purposes of the Data Protection Legislation and for this Clause 8 and these Terms and Conditions, We are the “Data Processor” and you are the “Data Controller”.
- The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor.
- The Data Controller shall indemnify the Data Processor against any actions, proceedings, claims, demands or costs (including, without prejudice to the generality of this provision, the legal costs of the Data Processor on a solicitor and own-client basis) brought against the Data Processor where the Data Processor processes personal data in accordance with these Terms and Conditions at the direction of the Data Controller.
- The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under these Terms and Conditions:
- Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by law.
- Ensure that it has in place suitable technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures.
- Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential; and
- Not transfer any personal data outside of the European Economic Area without the prior written consent of the Data Controller and only if the following conditions are satisfied:
- The Data Controller and/or the Data Processor has/have provided suitable safeguards for the transfer of personal data;
- Affected data subjects have enforceable rights and effective legal remedies;
- The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
- The Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data.
- Assist the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
- Notify the Data Controller without undue delay of a personal data breach;
- On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of these Terms and Conditions unless it is required to retain any of the personal data by law; and
- Maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 8 and to allow for audits by the Data Controller and/or any party designated by the Data Controller.
- The Data Processor shall not sub-contract any of its obligations to a sub-processor with respect to the processing of personal data under this Clause 8 without the prior written consent of the Data Controller (such consent not to be unreasonably withheld).
- Either Party may, at any time, and on at least 30 days’ notice, alter the data protection provisions of these Terms and Conditions, replacing them with any applicable data processing clauses or similar terms that form part of an applicable certification scheme. Such terms shall apply when replaced by attachment to these Terms and Conditions.
- Termination
- Either Party may terminate these Terms and Conditions at any time on giving 30 days’ notice. Where termination results in a cancellation of session(s) the provisions of sub-Clause 2.10 shall apply.
- Without prejudice to the generality of sub-Clause 9.1, these Terms and Conditions shall terminate, notwithstanding any other rights and remedies the Parties may have, if either Party goes into bankruptcy or liquidation – either voluntary or compulsory – save for the purposes of bona fide corporate reconstruction or amalgamation, or if a receiver is appointed over the whole or any part of that Party’s assets.
- The termination of these Terms and Conditions shall be without prejudice to any rights which have already accrued to either of the Parties under these Terms and Conditions.
- Nature of the Agreement
- These Terms and Conditions contain the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
- Each Party acknowledges that, in entering into these Terms and Conditions, it does not rely on any representation, warranty or other provision except as expressly provided in these Terms and Conditions, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
- No failure or delay by either Party in exercising any of its rights under these Terms and Conditions shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of these Terms and Conditions shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
- Severance
In the event that one or more of the provisions of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
- Notices
- All notices under these Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
- Notices shall be deemed to have been duly given:
- when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
- when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
- on the second business day following mailing, if mailed by national ordinary mail, postage prepaid; or
- on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
- Law and Jurisdiction
- These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
- Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
[1] This includes responding to Facebook communication, etc.
