1.TERMS AND CONDITIONS
1.1These terms and conditions together with the order information you agree with us will form a binding contract between Packshot Factory Limited (“Packshot Factory”) and the Client who orders photographic and / or video services from Packshot Factory (“Client”) and which shall constitute the entire agreement between the Client and Packshot Factory and apply to any trading agreement or other contract or arrangement between the Client and Packshot Factory;
1.2These terms apply to the exclusion of all other terms or conditions of contract the Client may propose and shall not be varied unless agreed in writing and signed by Packshot Factory.
2.1For the purposes of this agreement, the following expressions shall have the following meanings: “Client Content” shall mean all materials and 3rd party services provided by the Client to Packshot Factory for inclusion or incorporation into the Photographs and / or Videos or to be used in conjunction with the Photographs and / or Videos. “The Fees” shall mean any estimate of the fees for undertaking photographic and / or video works given to the Client by the Packshot Factory. “The Delivery Date" shall mean the date agreed by the Client and Packshot Factory for delivery of the Photographs and / or Videos. “The Photographs and / or Videos” shall mean the photographic and / or video works requested by the Client and supplied by the Packshot Factory in accordance with this agreement. “The Shoot Date” shall mean the date agreed by Packshot Factory and the Client upon which the Photographs and / or Videos will be created.
3.1In consideration of the payment by the Client to Packshot Factory of the Fees, Packshot Factory agrees on the Shoot Date, to create the Photographs and / or Videos in accordance with the Proposal (where such exist), with reasonable and due care in accordance with and subject to these terms.
3.2Packshot Factory undertakes that the Photographs and / or Videos shall be faithful to the basic conceptualisation of the underlying works, pitch or proposal and reflect the same standards of quality and integrity.
4.1The Client will co-operate with and act in good faith towards Packshot Factory and provide on request such source materials as are required to create the Photographs and / or Videos (including the Client Content) which Packshot Factory may incorporate into the Photographs and / or Videos or Packshot Factory may require to carry out its obligations hereunder.
5.1The Client shall pay Packshot Factory the Fees without deduction or setoff (with VAT thereon) within 30 days after the completion of the work.
5.2The Client shall provide Packshot Factory with all such information and material as it may reasonably request for the purpose of generating a valid invoice for payment of the Fees, including, where required, the provision of purchase order references before any work starts.
5.3Any Fees communicated to the Client by Packshot Factory is an estimate only. The Fees shall be set on the basis set out from time to time on the website of Packshot Factory and may be less than, or more than, the Fees.
5.4Packshot Factory may charge additional Fees in accordance with its then prevailing rates in the event of:
5.4.1delays or additional works caused or required by the Client including its failure to properly and / or timeously provide Packshot Factory with such information, Client Content, instructions, media or approvals as are reasonably required for the supply of the Photographs;
5.4.2changes to the cost of labour, materials, services and other circumstances outside of Packshot Factory's reasonable control;
5.4.3Client requiring the supply of Photographs and / or Videos, goods and services in addition to those requested or any variations to the Photographs and / or Videos;
5.4.4agreed third party expenses.
5.5In the event that the Client requires any change or alteration to the Photographs and / or Videos (“Change”), Packshot Factory and the Client shall, prior to the Change being effective or implemented, agree:
5.5.1the nature of the Change;
5.5.2the procedures for implementation of such Change; and
5.5.3the variation to the Fees.
5.6Until any Change is formally agreed between the Client and Packshot Factory, Packshot Factory will continue to perform and be paid for the Photographs and / or Videos as if the Change had not been proposed, unless otherwise requested by the Client.
5.7All and any Changes to the Photographs and / or Videos shall be reflected and accompanied by appropriate amendments to the Fees.
5.8Packshot Factory shall be entitled to charge interest on any overdue payment at the rate of 4% over base rate of the Bank of Scotland at the time.
6.INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
6.1All copyright, design right, registered designs, trade marks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world wide whether registered or not of whatever nature in material devised, created or commissioned by Packshot Factory, in supplying the Photographs and / or Videos and under this Agreement will vest in and belong to Packshot Factory unless otherwise agreed in writing and signed by both Parties. Packshot Factory may include within the Photographs and / or Videos reasonable copyright notice and credit. Packshot Factory hereby grants the Client unlimited world wide web display usage licence throughout the Internet and 2 years UK or any single country – any three media usage licenses being conditional upon receipt by Packshot Factory of the Fees in accordance with clause 5 above. In the event that the Fees are not paid in accordance with clause 5 above, or if the Client rejects the Photographs and / or Videos in accordance with clause 7.5 below, the licence granted in this clause 6.1 will be deemed to be terminated
6.2The licence granted in clause 6.1 above shall apply only to the visual image contained within the Photographs and / or Videos which Packshot Factory is specifically requested to proceed with and not to any original ideas, concepts or proposals of Packshot Factory pitched or suggested to the Client, all of which shall be retained by Packshot Factory.
6.3The Client grants Packshot Factory a non-exclusive royalty free licence to use the Photographs and / or Videos as part of a portfolio of the Photographer's work.
6.4The Client undertakes to Packshot Factory to indemnify and hold harmless Packshot Factory in full and defend at its own expense Packshot Factory against all costs, damages and losses incurred by it arising out of its use of the Client Content.
6.5Packshot Factory warrants to the Client that the Photographs and / or Videos shall not infringe the Intellectual Property Rights of any third party.
6.6Each Party undertakes that it will keep secret and confidential any information supplied by either party in connection with this Agreement or in connection with the business of the other and in connection with the Photographs and / or Videos and shall only disclose such information or part thereof (except to its own employees and advisers and then only on a need to know basis) with the other party’s prior written consent PROVIDED THAT this clause shall not extend to information which was and can be shown to be rightfully in the possession of the Client prior to the commencement of the negotiations leading to this Agreement or which is in the public domain (other than as a result of a breach of this clause);
7.DELIVERY, INSPECTION AND ACCEPTANCE
7.1Packshot Factory shall, on the Delivery Date, send the Client the Photographs and / or Videos via ftp. If the Client requires delivery of the Photographs in any other format or by any specified method of delivery, the Client shall meet such additional costs (if any) incurred by reason of that requirement.
7.2The Photographs and / or Videos shall only be treated as being defective if both the Client and Packshot Factory agree that the Photographs and / or Videos are below the specific resolution communicated by the Client to Packshot (if any) or any commonly observed specific requirements as are suitable for the required media in which the Photographs and / or Videos are intended to appear.
7.3The Client shall not be entitled to claim that the Photographs and / or Videos are defective in accordance with clause 7.2 where:
7.3.1it has already approved the Photographs and / or Videos, including by email; or
7.3.2it or its directors, agents, employees or any other person acting under its instructions has been active in the art direction applied to the Photographs and / or Videos, including by email;
7.4The Client shall inspect the Photographs and / or Videos upon delivery and shall notify Packshot Factory in writing within five days if it wishes to claim that the Photographs and / or Videos are defective in accordance with clause 7.2 above whereupon Packshot Factory shall, if such defect is proved, be given five business days within which to remedy the same.
7.5In the event that it is not possible for Packshot Factory to remedy any defect in the Photographs and / or Videos in accordance with clause 7.4 above and before any deadline set by a third party for the delivery of the Photographs and / or Videos by the Client, the Client shall be entitled to reject the Photographs and / or Videos to withhold Payment of the Fees.
7.6If the Client fails to alert Packshot Factory in writing of any defects in the Photographs and / or Videos within five business days of delivery then the Client shall be deemed to accept the Photographs and / or Videos.
8.LIABILITY AND WARRANTY
8.1Subject to clause 8.2 below, Packshot Factory’s liability for any loss or damage direct or otherwise and howsoever caused whether in tort, contract or otherwise shall not exceed the Fees invoiced by Packshot Factory to the Client for the Photographs and / or Videos.
8.2Nothing in this Agreement shall limit the liability of (i) either party for death or personal injury caused by its negligence; (ii) Packshot Factory for any damages, losses and expenses suffered by the Client and arising due to Packshot Factory's breach of clause 6.5 above.
8.3Packshot Factory shall not be liable to the Client for any consequential loss or damage.
8.4When instructions or advice are given or received orally by Packshot Factory, it shall have no liability to the Client for any misunderstanding or misrepresentation, which may arise in relation thereto except in relation to fraudulent misrepresentations.
8.5Packshot Factory shall have no liability to the Client in respect of the Client Content. On completion of the Photographs and / or Videos the Client agrees to collect the Client Content within 2 months of completion of the works, failing which, Packshot Factory may dispose of it.
9.LEGISLATION AND THIRD PARTY MATERIALS
9.1The Client shall be responsible for all and any applicable rules, regulations, codes of practice and laws relating to its use and operation of the Photographs and / or Videos including without limitation any obligations under the Data Protection Act 1998; Regulation of Investigatory Powers Act 2000; Competition Act 1998; Disability Discrimination Act 1995 and equivalent legislation. Packshot Factory shall not be liable to Client in relation to such legislation and gives no warranty, representation or undertaking in relation thereto, unless agreed in writing otherwise.
9.2Packshot Factory gives no warranty, representation or undertaking in relation to any third party materials or works.
9.3Subject to and provided that Packshot Factory acts in accordance with this clause 6 above, the Client agrees that it is responsible for its selection and use of all Photographs and / or Videos and contracting with any third parties in relation thereto.
9.4Subject to the foregoing, Packshot Factory shall have no liability to the Client whatsoever in relation to the Photographs and / or Videos and gives no warranty and makes no representation as to whether Photographs and / or Videos contain or are free from racist, defamatory, sexually explicit, inflammatory, obscene or other legally restricted material and explicitly excludes all and any liability in relation thereto.
10.TERMINATION AND CANCELLATION
10.1Packshot Factory shall be entitled to terminate this Agreement upon the Client’s material breach (including without limitation non-payment of any sum due) unless the Client remedies such breach within seven business days of its occurrence.
10.2Packshot Factory will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of Packshot Factory including without limitation Internet outages, communications outages, fire, flood or war.
10.3In the event that the Client wishes to cancel the creation of the Photographs and / or Videos by Packshot Factory or the provision of photographic and / or video services in accordance with this Agreement (save in the event of a material breach by Packshot Factory of a fundamental term of this Agreement) at any time, Packshot Factory shall be entitled to recover the following proportions of the Fees:
10.3.1where such cancellation is communicated to Packshot Factory in writing more than five working days in advance of the Shoot Date Packshot Factory shall not be entitled to any proportion of the Fees;
10.3.2where such cancellation is communicated to Packshot Factory in writing within the period between four to five working days in advance of the Shoot Date, Packshot Factory shall be entitled to recover 50% of the Fees;
10.3.3where such cancellation is communicated to Packshot Factory in writing within the period of three working days before the Shoot Date, or if any such cancellation is not communicated to Packshot Factory at all, Packshot Factory shall be entitled to recover 100% of the Fees;
10.4During the course of this Agreement and for a period of 12 months afterwards, the Client shall not solicit the staff of Packshot Factory or any person employed or engaged by Packshot Factory in relation to its provision of the services in the 6 months prior to expiry or termination of this Agreement, or entice them to transfer their employment or services.
11.1Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
11.2If at any time any part of this Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the parties’ intentions and the remainder of the provisions will remain in full force and effect.
11.3No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
11.4The Client shall not assign the benefit or burden of this Agreement without the prior written consent of Packshot Factory.
11.5No person who is not a party to this Agreement shall be entitled to enforce any of the terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
11.6These Terms are made and shall be construed in accordance with the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.