terms and conditions: USE OF WEBSITE
I am delighted that you have visited my website and hope you enjoy the experience. There are a few points I need to bring to your attention, and these are detailed on this page.
If you continue to browse and use this website, you are agreeing to comply with and be bound by the following terms and conditions of use, which together with my privacy notice and cookies policy govern my relationship with you in relation to this website. If you disagree with any part of these terms and conditions, please do not use this website.
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
- "Content”: means any and all text, images, audio, video, scripts, code, software, databases and any other form of information capable of being stored on a computer that appears on, or forms part of, My Site; and
- “I/Me/My”: means Alistair Kerr Photography, a business located in Gauldry, Scotland.
2. Information About Me
2.1 My Site, www.alistairkerr.com, is owned and operated by Alistair Kerr Photography, also trading as Alistair Kerr Creative.
3. Access to My Site
3.1 Access to My Site is free of charge.
3.2 It is your responsibility to make any and all arrangements necessary in order to access My Site.
3.3 Access to My Site is provided “as is” and on an “as available” basis. I may alter, suspend or discontinue My Site (or any part of it) at any time and without notice. I will not be liable to you in any way if My Site (or any part of it) is unavailable at any time and for any period.
4. Intellectual Property Rights
4.1 All Content included on My Site and the copyright and other intellectual property rights subsisting in that Content, unless specifically labelled otherwise, belongs to or has been licensed by Me. All Content is protected by applicable United Kingdom and international intellectual property laws and treaties. Each and every photograph and video on My site is protected by copyright and trademark law and other related intellectual property rights. Copyright in the photographs is owned by Alistair Kerr. The photographs are also protected by moral rights. Alistair Kerr asserts his moral right to be identified as the author wherever and whenever his photographs are copied or distributed by any means. Copying and using images and video without Alistair Kerr's written permission is illegal and action will be taken where it is known that infringement of copyright has occurred.
4.2 Subject to sub-Clauses 4.3 and 4.6 you may not reproduce, copy, distribute, sell, rent, sub-licence, store, or in any other manner re-use Content from My Site unless given express written permission to do so by Me.
4.3 You may:
4.3.1 Access, view and use My Site in a web browser (including any web browsing capability built into other types of software or app);
4.3.2 Download My Site (or any part of it) for caching;
4.3.3 Download extracts from pages on My Site; and
4.3.4 Save pages from My Site for later and/or offline viewing.
4.4 My status as the owner and author of the Content on My Site (or that of identified licensors, as appropriate) must always be acknowledged.
4.5 You may not use any Content saved or downloaded from My Site for commercial purposes without first obtaining a licence from Me (or my licensors, as appropriate) to do so. This does not prohibit the normal access, viewing and use of My Site for general information purposes whether by business users or consumers.
4.6 Nothing in these Terms and Conditions limits or excludes the provisions of Chapter III of the Copyrights, Designs and Patents Act 1988 ‘Acts Permitted in Relation to Copyright Works’, covering in particular the making of temporary copies; research and private study; the making of copies for text and data analysis for non-commercial research; criticism, review, quotation and news reporting; caricature, parody or pastiche; and the incidental inclusion of copyright material.
5. Links to My Site
5.1 You may link to My Site provided that:
5.1.1 You do so in a fair and legal manner;
5.1.2 You do not do so in a manner that suggests any form of association, endorsement or approval on My part where none exists;
5.1.3 You do not use any logos or trade marks displayed on My Site without My express written permission; and
5.1.4 You do not do so in a way that is calculated to damage My reputation or to take unfair advantage of it.
5.2 You may not link to any page other than the homepage of My Site, www.alistairkerr.com. Deep-linking to other pages requires My express written permission.
5.3 Framing or embedding of My Site on other websites is not permitted without My express written permission. Please contact Me using the contact form on the site for further information.
5.4 You may not link to My Site from any other site the main content of which contains material that:
5.4.1 is sexually explicit;
5.4.2 is obscene, deliberately offensive, hateful or otherwise inflammatory;
5.4.3 promotes violence;
5.4.4 promotes or assists in any form of unlawful activity;
5.4.5 discriminates against, or is in any way defamatory of, any person, group or class of persons, race, sex, religion, nationality, disability, sexual orientation, or age;
5.4.6 is intended or is otherwise likely to threaten, harass, annoy, alarm, inconvenience, upset, or embarrass another person;
5.4.7 is calculated or is otherwise likely to deceive another person;
5.4.8 is intended or is otherwise likely to infringe (or to threaten to infringe) another person’s privacy;
5.4.9 misleadingly impersonates any person or otherwise misrepresents the identity or affiliation of a particular person in a way that is calculated to deceive (obvious parodies are not included in this definition provided that they do not fall within any of the other provisions of this sub-Clause 5.4);
5.4.10 implies any form of affiliation with Me where none exists;
5.4.11 infringes, or assists in the infringement of, the intellectual property rights (including, but not limited to, copyright, trade marks and database rights) of any other party; or
5.4.12 is made in breach of any legal duty owed to a third party including, but not limited to, contractual duties and duties of confidence.
5.5 The content restrictions in sub-Clause 5.4 do not apply to content submitted to sites by other users provided that the primary purpose of the site accords with the provisions of sub-Clause 5.4. You are not, for example, prohibited from posting links on general-purpose social networking sites merely because another user may post such content. You are, however, prohibited from posting links on websites which focus on or encourage the submission of such content from users.
6. Links to Other Sites
Links to other sites may be included on My Site. Unless expressly stated, these sites are not under My control. I neither assume nor accept responsibility or liability for the content of third party sites. The inclusion of a link to another site on My Site is for information only and does not imply any endorsement of the sites themselves or of those in control of them.
7.1 Nothing on My Site constitutes advice on which you should rely. It is provided for general information purposes only. Professional or specialist advice should always be sought before taking any action relating to the material on My site.
7.2 Insofar as is permitted by law, I make no representation, warranty, or guarantee that My Site will meet your requirements, that it will not infringe the rights of third parties, that it will be compatible with all software and hardware, or that it will be secure.
7.3 I make reasonable efforts to ensure that the Content on My Site is complete, accurate, and up-to-date. I do not, however, make any representations, warranties or guarantees (whether express or implied) that the Content is complete, accurate, or up-to-date.
8. My Liability
8.1 To the fullest extent permissible by law, I accept no liability to any user for any loss or damage, whether foreseeable or otherwise, in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the use of (or inability to use) My Site or the use of or reliance upon any Content included on My Site.
8.2 To the fullest extent permissible by law, I exclude all representations, warranties, and guarantees (whether express or implied) that may apply to My Site or any Content included on My Site.
8.3 If you are a business user, I accept no liability for loss of profits, sales, business or revenue; loss of business opportunity, goodwill or reputation; loss of anticipated savings; business interruption; or for any indirect or consequential loss or damage.
8.4 I exercise all reasonable skill and care to ensure that My Site is free from viruses and other malware. I accept no liability for any loss or damage resulting from a virus or other malware, a distributed denial of service attack, or other harmful material or event that may adversely affect your hardware, software, data or other material that occurs as a result of your use of My Site (including the downloading of any Content from it) or any other site referred to on My Site.
8.5 I neither assume nor accept responsibility or liability arising out of any disruption or non-availability of My Site resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, natural events, acts of war, or legal restrictions and censorship.
8.6 Nothing in these Terms and Conditions excludes or restricts My liability for fraud or fraudulent misrepresentation, for death or personal injury resulting from negligence, or for any other forms of liability which cannot be excluded or restricted by law. For full details of consumers’ legal rights, including those relating to digital content, please contact your local Citizens’ Advice Bureau or Trading Standards Office.
9. Viruses, Malware and Security
9.1 I exercise all reasonable skill and care to ensure that My Site is secure and free from viruses and other malware.
9.2 You are responsible for protecting your hardware, software, data and other material from viruses, malware, and other internet security risks.
9.3 You must not deliberately introduce viruses or other malware, or any other material which is malicious or technologically harmful either to or via My Site.
9.4 You must not attempt to gain unauthorised access to any part of My Site, the server on which My Site is stored, or any other server, computer, or database connected to My Site.
9.5 You must not attack My Site by means of a denial of service attack, a distributed denial of service attack, or by any other means.
9.6 By breaching the provisions of sub-Clauses 9.3 to 9.5 you may be committing a criminal offence under the Computer Misuse Act 1990. Any and all such breaches will be reported to the relevant law enforcement authorities and I will cooperate fully with those authorities by disclosing your identity to them. Your right to use My Site will cease immediately in the event of such a breach.
10. Acceptable Usage Policy
10.1 You may only use My Site in a manner that is lawful. Specifically:
10.1.1 you must ensure that you comply fully with any and all local, national or international laws and/or regulations;
10.1.2 you must not use My Site in any way, or for any purpose, that is unlawful or fraudulent;
10.1.3 you must not use My Site to knowingly send, upload, or in any other way transmit data that contains any form of virus or other malware, or any other code designed to adversely affect computer hardware, software, or data of any kind; and
10.1.4 you must not use My Site in any way, or for any purpose, that is intended to harm any person or persons in any way.
10.2 I reserve the right to suspend or terminate your access to My Site if you materially breach the provisions of this Clause 10 or any of the other provisions of these Terms and Conditions. Specifically, I may take one or more of the following actions:
10.2.1 suspend, whether temporarily or permanently, your right to access My Site;
10.2.2 issue you with a written warning;
10.2.3 take legal proceedings against you for reimbursement of any and all relevant costs on an indemnity basis resulting from your breach;
10.2.4 take further legal action against you as appropriate;
10.2.5 disclose such information to law enforcement authorities as required or as I deem reasonably necessary; and/or
10.2.6 any other actions which I deem reasonably appropriate (and lawful).
10.3 I hereby exclude any and all liability arising out of any actions (including, but not limited to those set out above) that I may take in response to breaches of these Terms and Conditions.
11. Privacy and Cookies
Use of My Site is also governed by My Cookie and Privacy Policies, available from www.alistairkerr.com/cookies and www.alistairkerr.com/privacy. These policies are incorporated into these Terms and Conditions by this reference.
12. Changes to these Terms and Conditions
I may alter these Terms and Conditions at any time. This may be necessary, for example, if the law changes, or if I change my business in a way that affects my Terms and Conditions.
12.1 If I do so, details of the changes will be highlighted on this page. Any such changes will become binding on you upon your first use of My Site after the changes have been implemented. You are therefore advised to check this page from time to time.
12.2 In the event of any conflict between the current version of these Terms and Conditions and any previous version(s), the provisions current and in effect shall prevail unless it is expressly stated otherwise.
12.3 This notice was produced on 8th May 2018. Any future revisions will be identified alphabetically, eg “Revision A, dated…..”.
13. Contacting Me
To contact Me, please do so using the contact form provided on My site.
14. Communications from Me
14.1 I will never send you marketing emails of any kind without your express consent. If you do give such consent, you may opt out at any time. Any and all marketing emails sent by Me include an unsubscribe link. If you opt out of receiving emails from Me at any time, it may take up to 5 business days for Me to comply with your request. During that time, you may continue to receive emails from Me.
14.2 For questions or complaints about communications from Me (including, but not limited to marketing emails), please contact Me using the contact form provided on My site.
15. Data Protection
15.1 Any and all personal information that I may collect will be collected, used and held in accordance with the provisions of the GDPR and your rights and My obligations under that legislation.
15.2 I may use your personal information to:
15.2.1 Reply to any communications you send to Me or, if you have signed up to receive further information that I may offer on My website, to send you the requested information. Your information will not be used for any other purposes, for example you will not be added to a mailing list for marketing unless you have specifically consented to this at the point of signing up;
15.2.2 See 15.4 below regarding other data I may collect.
15.3 I will not pass on your personal information to any third parties.
15.4 When you use My site, we may have access to your IP address, geographical location, browser type and version, operating system, referral source, length of visit, page views and website navigation paths, as well as information about the timing, frequency and pattern of your service use. I do not use this to identify you personally and it is used solely for general analysis of visitor browsing patterns and to identify popular content. The source of the usage data is My website host’s inbuilt analytics tracking system. This data may be processed for the purposes of analysing the use of the website and services. The legal basis for this processing is my Legitimate Interests, namely monitoring and improving My website and services.
16. Law and Jurisdiction
16.1 These Terms and Conditions, and the relationship between you and Me (whether contractual or otherwise) shall be governed by, and construed in accordance with the law of Scotland.
16.2 If you are a consumer, you will benefit from any mandatory provisions of the law in your country of residence. Nothing in Sub-Clause 16.1 above takes away or reduces your rights as a consumer to rely on those provisions.
16.3 If you are a consumer, any dispute, controversy, proceedings or claim between you and Me relating to these Terms and Conditions, or the relationship between you and Me (whether contractual or otherwise) shall be subject to the jurisdiction of the courts of England, Wales, Scotland, or Northern Ireland, as determined by your residency.
16.4 If you are a business, any disputes concerning these Terms and Conditions, the relationship between you and Me, or any matters arising therefrom or associated therewith (whether contractual or otherwise) shall be subject to the jurisdiction of the courts of Scotland.
TERMS AND CONDITIONS: SPECIFIC PROMOTIONS
TERMS AND CONDITIONS: COMMERCIAL COMMISSIONS
For the purpose of this agreement "the Agency" and "the Advertiser" shall where the context so admits include their respective assignees, sub-licensees and successors in title. In cases where the Photographer's client is a direct client (i.e. with no agency or intermediary), all references in this agreement to both "the Agency" and "the Advertiser" shall be interpreted as references to the Photographer's client. "Photographs" means all photographic material furnished by the Photographer, whether transparencies, negatives, prints or any other type of physical or electronic material.
The entire copyright in the Photographs is retained by the Photographer at all times throughout the world.
The Photographs are also protected by moral rights. The Photographer asserts his/her moral right to be identified as the author wherever and whenever his/her Photographs are copied or distributed by any means.
3. OWNERSHIP OF MATERIALS
Title to all Photographs remains the property of the Photographer. When the Licence to Use the material has expired the Photographs must be returned to the Photographer in good condition within 30 days.
The Licence to Use comes into effect from the date of payment of the relevant invoice(s). No use may be made of the Photographs before payment in full of the relevant invoice(s) without the Photographer's express permission. Any permission which may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Agency is put into receivership or liquidation. The Licence only applies to the advertiser and product as stated on the front of the form and its benefit shall not be assigned to any third party without the Photographer's permission. Accordingly, even where any form of 'all media' Licence is granted, the photographer's permission must be obtained before any use of the Photographs for other purposes eg use in relation to another product or sublicensing through a photo library. Permission to use the Photographs for purposes outside the terms of the Licence will normally be granted upon payment of a further fee, which must be mutually agreed (and paid in full) before such further use. Unless otherwise agreed in writing, all further Licences in respect of the Photographs will be subject to these terms and conditions.
The Agency and Advertiser will be authorised to publish the Photographs to the exclusion of all other persons including the Photographer. However, the Photographer retains the right in all cases touse the Photographs in any manner at any time and in any part of the world for the purposes of advertising or otherwise promoting his/her work. After the exclusivity period indicated in the Licence to Use the Photographer shall be entitled to use the Photographs for any purposes after a period of 30 days from the expiry of the Licence.
6. CLIENT CONFIDENTIALITY
The photographer will keep confidential and will not disclose to any third parties or make use of material or information communicated to him/her in confidence for the purposes of the photography, save as may be reasonably necessary to enable the Photographer to carry out his/her obligations in relation to the commission.
The Photographer agrees to indemnify the Agency and the Advertiser against all expenses, damages, claims and legal costs arising out of any failure by the Photographer to obtain any clearances for which he/she was responsible in respect of third party copyright works, trade marks, designs or other intellectual property. The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed before the shoot. In all other cases the Agency shall be responsible for obtaining such clearances and will indemnify the Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances.
Payment by the Agency will be expected for the commissioned work within 30 days of the issue of the relevant invoice. If the invoice is not paid, in full, within 30 days The Photographer reserves the right to charge interest at the rate prescribed by the Late Payment of Commercial Debt (Interest) Act 1998 from the date payment was due until the date payment is made. Invoices will be issued at time of delivery of proofs.
Where extra expenses or time are incurred by the Photographer as a result of alterations to the original brief by the Agency or the Advertiser, or otherwise at their request, the Agency shall give approval to and be liable to pay such extra expenses or fees at the Photographer's normal rate to the Photographer in addition to the expenses shown overleaf as having been agreed or estimated.
Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of style or composition.
11. CANCELLATION & POSTPONEMENT
A booking is considered firm as from the date of confirmation and accordingly the Photographer will, at his/her discretion, charge a fee for cancellation or postponement.
· when cancelled between 2 and 4 days of the agreed shoot date: £350 per day unless the Photographer is able to arrange another booking for the day concerned.
· when cancelled within 2 days of the agreed shoot date: £700 per day unless the Photographer is able to arrange another booking for the day concerned.
· Any unrecoverable expenses incurred by the Photographer (including pre-paid travel and accommodation costs).
12. RIGHT TO A CREDIT
If the box on the estimate and the licence marked "Right to a Credit" has been ticked the Photographer's name will be printed on or in reasonable proximity to all published reproductions of the Photograph(s). By ticking the box overleaf the Photographer also asserts his/her statutory right to be identified in the circumstances set out in Sections 77-79 of the Copyright, Designs and Patents Act 1988 or any amendment or re-enactment thereof.
13. ELECTRONIC STORAGE
Save for the purposes of reproduction for the licensed use(s), the Photographs may not be stored in any form of electronic medium without the written permission of the Photographer. Manipulation of the image or use of only a portion of the image may only take place with the permission of the Photographer.
14. APPLICABLE LAW
This agreement shall be governed by the laws of Scotland
These Terms and Conditions shall not be varied except by agreement in writing.
16. NATURE OF COMMISSION
This commission will be undertaken by the Photographer as an independent contractor and not on a “work made for hire” basis.
17. FORCE MAJEURE or ACT OF GOD
The due performance of this contract is subject to alteration or cancellation by either party owing to any cause beyond their control.
18. LIMITATION OF LIABILITY
In the unlikely event of a total photographic failure or cancellation of this contract by either party or in any other circumstance the liability of one party to the other shall be limited to the total value of the contract. Neither party shall be liable for indirect or consequential loss.
19. ACCEPTANCE OF THESE TERMS and CONDITIONS
The Photographer will bring these Terms and Conditions to the attention of the Client at the time of presenting a quotation for the work required. By subsequently agreeing to appoint the Photographer, the Client will be deemed to have agreed to the Terms and Conditions.
TERMS AND CONDITIONS: PROMOTIONS
Information will be displayed here from time to time relevant to any promotions run by Alistair Kerr Photography, where (for example) there is insufficient space to print these on an entry form.