TERMS & CONDITIONS
1.1 In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance
with clause 10.7
Contract: the contract between Imago Photographic and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from Imago Photographic. Deliverables: the photographic images produced by Imago Photographic for the
Customer to use solely for its own use.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer's order for Services as set out in the Customer's written acceptance of Imago Photographic’s quotation or estimate, as the case may be.
Services: the services, including the Deliverables, supplied by Imago Photographic to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by Imago Photographic to the Customer.
Imago Photographic: Imago Photographic whose principal place of business is at Unit 2, Upper Stalls, Iford, East Sussex, BN7 3EJ.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and
1.2.4 a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Imago Photographic issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Imago Photographic which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Imago Photographic, and any descriptions or illustrations contained in Imago Photographic’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation or estimate, as the case may be, given by Imago Photographic shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 Imago Photographic shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 Imago Photographic shall use all reasonable endeavours to meet any performance dates specified in Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Imago Photographic warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER'S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
4.1.2 co-operate with Imago Photographic in all matters relating to the Services;
4.1.3 provide Imago Photographic, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by Imago Photographic; and
4.1.4 provide Imago Photographic with such information and materials as Imago Photographic may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
4.2 If Imago Photographic’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 Imago Photographic shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Imago Photographic’s performance of any of its obligations; and
4.2.2 Imago Photographic shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Imago Photographic’s failure or delay to perform any of its obligations as set out in this clause 4.2.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be on a time and materials basis:
5.1.1 the Charges shall be calculated as set out in the Order; and
5.1.2 unless otherwise agreed in writing, Imago Photographic’s standard daily fee rates are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days.
5.2 Unless otherwise agreed in writing, Imago Photographic shall invoice the Customer 100% on completion of the Services.
5.2.1 The Customer shall pay each invoice submitted by Imago Photographic: (i) on completion of the work; and (ii) in full and in cleared funds to a bank account nominated in writing by Imago Photographic, and
time for payment shall be of the essence of the Contract.
5.3 All amounts payable by the Customer under the Contract are exclusive of amounts in
respect of value added tax chargeable for the time being (VAT). Where any taxable
supply for VAT purposes is made under the Contract by Imago Photographic to the Customer, the Customer shall, on receipt of a valid VAT invoice from Imago Photographic, pay to Imago Photographic such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.4 Without limiting any other right or remedy of Imago Photographic, if the Customer fails to make any payment due to Imago Photographic under the Contract by the due date for payment (Due Date), Imago Photographic shall have the right to charge interest on the overdue amount at the rate of 4% per annum above the then current Barclays Bank's base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services, including the Deliverables, shall be owned by Imago Photographic.
6.2 Upon receipt of the Customer paying in full all charges invoiced by Imago Photographic in accordance with clause 5, Imago Photographic grants to the Customer a royalty free, non-exclusive, non-transferable, non-assignable licence to all Intellectual Property Rights in the Deliverables, to use strictly in connection with the Customer’s business.
6.3 Imago Photographic warrants that it has not given and will not give permission to any third party to use any of the Deliverable nor any of the Intellectual Property Rights in the Deliverables.
6.4 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on Imago Photographic obtaining a written licence from the relevant licensor on such terms as will entitle imago Photographic to license such rights to the Customer.
7. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
7.1 Nothing in these Conditions shall limit or exclude Imago Photographic liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.2 Subject to clause 7.1:
7.2.1 Imago Photographic shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
7.2.2 Imago Photographic total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £10,000.
7.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.4 This clause 7 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
8.1.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of that party being notified in writing of the breach;
8.1.2 if the other party becomes insolvent, or if an order is made or a resolution is passed for the winding up of the other party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other party's assets or business, or if the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt; or
8.1.3 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
8.2 Without limiting its other rights or remedies, Imago Photographic may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 1 months' written notice.
8.4 Without limiting its other rights or remedies, Imago Photographic shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and Imago Photographic if the Customer becomes subject to any of the events listed in clause 8.1.2 to clause 8.1.3, or Imago Photographic reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9. CONSEQUENCES OF TERMINATION
9.1 On termination of the Contract for any reason:
9.1.1 the Customer shall immediately pay to Imago Photographic all of Imago Photographic’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Imago Photographic shall submit an invoice, which shall be payable by the Customer immediately on receipt;
9.1.2 the Customer shall return any Deliverables which have not been fully paid for. If the Customer fails to do so, then Imago Photographic may enter the Customer's premises and take possession of them, or directly remove them from the customers website. Until
they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
9.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.1 Either party may defer the date for performance of, or payment for, the Services, or terminate the Contract, if it is prevented from, or delayed in, carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lockouts or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
10.2 Imago Photographic shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of any of the causes under clause 10.1.
10.3 Imago Photographic may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
10.4 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.5 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
10.6 A person who is not a party to the Contract shall not have any rights under or in connection with it.
10.7 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Imago Photographic.
10.8 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.