CAPTURE FACTORY PHOTOGRAPHY LTD TERMS AND CONDITIONS

1. TERMS AND CONDITIONS
1.1 These terms and conditions together with the order information you agree
with us will form a binding contract between Capture Factory Photography Ltd
(“Capture Factory”) and the Client who orders photographic services
from Capture Factory (“Client”) and which shall constitute the entire
agreement between Client and Capture Factory and apply to any trading
agreement or other contract or arrangement between Client and
Capture Factory;
1.2 These 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 Capture Factory.
2. DEFINITIONS
2.1 For 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 Capture Factory for inclusion or incorporation into the
Photographs or to be used in conjunction with the Photographs.
“The Fees” shall mean the rate of payment for the provision of photographic
services by Capture Factory to Client as is communicated to the Client
either through the website of Capture Factory or by any other means. The
Fees shall include any third party Fees payable in the creation of the
Photographs.
“The Delivery” Date shall mean the date agreed by the Client and Capture
Factory for delivery of the Photographs.
“The Photographs” shall mean the photographic works requested by the
Client and supplied by the Capture Factory in accordance with this
agreement.
“The Shoot Date” shall mean the date agreed by Capture Factory and the
Client upon which the Photographs will be created.
“Total Fees Estimate” shall mean any estimate of the fees for undertaking
photographic works given to the Client by the Capture Factory.
3. CAPTURE FACTORY
3.1 In consideration of the payment by the Client to Capture Factory of the
Fees, Capture Factory agrees on the Shoot Date, to create the
Photographs in accordance with the Proposal (where such exist), with
reasonable and due care in accordance with and subject to these terms.
3.2 Capture Factory undertakes that the Photographs shall be faithful to the
basic conceptualisation of the underlying works, pitch or proposal and
reflect the same standards of quality and integrity.
4. CLIENT
4.1 The Client will co-operate with and act in good faith towards Capture
Factory and provide on request such source materials as are required to
create the Photographs (“Client Content”) as Capture Factory is to
incorporate into the Photographs or Capture Factory require to carry
out its obligations hereunder.
5. PAYMENT
5.1 The Client shall pay Capture Factory the Fees without deduction or setoff
(with VAT thereon) within 28 days of receipt of a valid invoice.
5.2 The Client shall provide Capture 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 within the period of two (2) days
following the Shoot Date.
5.3 Any Total Fees Estimate communicate to the Client by Capture Factory
is an estimate only. The Fees shall be set on the basis set out from time
to time on the website of Capture Factory and may be less than, or
more than, the Total Fees Estimate.
5.4 Capture Factory may charge additional Fees in accordance with its then
prevailing rates in the event of:
5.4.1 delays or additional works caused or required by the Client
including its failure to properly and / or timeously provide Capture
Factory with such information, Client Content, instructions, media or
approvals as are reasonably required for the supply of the Photographs;
5.4.2 changes to the cost of labour, materials, services and other
circumstances outside of Capture Factory’s reasonable control.
5.4.3 Client requiring the supply of Photographs, goods and services in
addition to those requested or any variations to the Photographs;
5.4.4 agreed third party expenses.
5.5 In the event that the Client requires any change or alteration to the
Photographs (“Change”), Capture Factory and the Client shall, prior to
such change being effective or implemented, agree:
5.5.1 the nature of the Change;
5.5.2 the procedures for implementation of such Change; and
5.5.3 the variation to the Fees.
5.6 Until any Change is formally agreed between the Client and Capture
Factory, Capture Factory will continue to perform and be paid for the
Photographs as if the Change had not been proposed, unless otherwise
requested by the Client.
5.7 All and any Changes to the Photographs shall be reflected and
accompanied by appropriate amendments to the Fees.
5.8 Capture Factory shall be entitled to charge interest on any overdue
payment at the rate of 8% over base rate of the Bank of Scotland at the
time.
6. INTELLECTUAL PROPERTY RIGHTS / CONFIDENTIALITY
6.1 All copyright, design right, registered designs, trade marks, patents,
database rights and confidential information and ideas and all other
rights whatsoever of a like nature worldwide whether registered or not
of whatever nature in material devised, created or commissioned by
Capture Factory, in supplying the Photographs and under this
Agreement will vest in and belong to Capture Factory unless otherwise
agreed in writing and signed by both Parties. Capture Factory may
include within the Photographs reasonable copyright notice and credit.
6.2 Capture Factory hereby grants the Client a perpetual, royalty-free, sole
license to use, copy and otherwise deal in the Photographs, with such
license being conditional upon receipt by Capture 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 in accordance with clause 7.5 below, the licence granted in
this clause 6.2 will be deemed to be terminated.
6.3 The licence granted in clause 6.2 above shall apply only to the visual
image contained within the Photographs which Capture Factory is
specifically requested to proceed with and not to any original ideas,
concepts or proposals of Capture Factory pitched or suggested to the
Client, all of which shall be retained by Capture Factory.
6.4 Capture Factory shall use reasonable commercial endeavours to obtain
the Client’s approval for the copying or use of the Photographs otherwise
than as stipulated under this agreement. In the event that the Client is
contacted with such a request, the approval requested may be withheld
by Client on reasonable grounds. In the event that Capture Factory’s
commercial endeavours to contact the Client are unsuccessful or if the
approval for use of the Photographs by Capture Factory is withheld
without the Client setting out reasonable grounds for withholding that
approval, Capture Factory shall be entitled to use the Photographs
without further reference to the Client. Nothing in this clause 6.4 shall
give Capture Factory any right to grant further licences to use the
Photographs in relation to any third party.
6.5 The Client grants Capture Factory a non-exclusive royalty free licence
to use the Client Content for all purposes relating to this Agreement and
warrants that it is fully entitled to grant Capture Factory these rights
and that the Client Content are free of racist, defamatory, obscene and
other legally restricted material.
6.6 The Client undertakes to Capture Factory to indemnify and hold
harmless Capture Factory in full and defend at its own expense
Capture Factory against all costs, damages and losses incurred by it
arising out of its use of the Client Content or breach of clause 6.5 above.
6.7 Each 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 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);
6.8 Capture Factory warrants that it will use reasonable efforts to ensure
that the Photographs do not infringe the copyright of any third party.
7. DELIVERY, INSPECTION AND ACCEPTANCE
7.1 Capture Factory shall, on the Delivery Date, provide a CD containing
images of the Photographs to the Client’s premises. 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.
7.2 The Photographs shall only be treated as being defective if both the
Client and Capture Factory agree that the Photographs are below the
specific resolution communicated by the Client to Capture (if any) or
any commonly observed specific requirements as are suitable for the
required media in which the Photographs are intended to appear; or
7.3 The Client shall not be entitled to claim that the Photographs are
defective in accordance with clause 7.2:
7.3.1 it has already approved the Photographs, including by email; or
7.3.2 it or its directors, agents, employees or any other person acting
under its instructions has been active in the art direction applied to the
Photographs.
7.4 The Client shall inspect the Photographs upon delivery and shall notify
Capture Factory immediately if it wishes to claim that the Photographs
are defective in accordance with clause 7.2 above whereupon Capture
Factory shall, if such defect is proved, be given 5 days within which to
remedy the same.
7.5 In the event that it is not possible for Capture Factory to remedy any
defect in the Photographs in accordance with clause 7.4 above and before
any deadline set by a third party for the delivery of the Photographs by
the Client, the Client shall be entitled to reject the Photographs and to
withhold Payment of the Fees.
7.6 If the Client fails to alert Capture Factory of any defects in the
Photographs within five(5) days of delivery then the Client shall be
deemed to accept the Photographs.
8. LIABILITY AND WARRANTY
8.1 Subject to Clause 8.2 below, Capture 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 Capture
Factory to the Client for the Photographs.
8.2 Nothing in this Agreement shall limit the liability of either party for death
or personal injury caused by its negligence.
8.3 Capture Factory shall not be liable to the Client for any consequential
loss or damage.
8.4 When instructions or advice are given or received orally by Capture
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.
8.5 Capture Factory shall have no liability to the Client in respect of the
Client Content. On completion of the Photographs the Client agrees to
collect the Client Content within 2 months of completion of the works,
failing which, Capture Factory may dispose of it.
9. LEGISLATION AND THIRD PARTY MATERIALS
9.1 The Client shall be responsible for and notify Capture Factory of all and
any applicable rules, regulations, codes of practice and laws relating to
its use and operation of the Photographs 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. Capture 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.
9.2 Capture Factory gives no warranty, representation or undertaking in
relation to any third party materials or works.
9.3 Subject to and provided that Capture 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 contracting with any third
parties in relation thereto and that it shall be responsible for making
reasonable enquiries into the copyright and like rights in any
Photographs.
9.4 Subject to the foregoing Capture Factory shall have no liability to the
Client whatsoever in relation to the Photographs and gives no warranty
and makes no representation as to whether Photographs 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
10.1 Capture 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 7 days of its
occurrence.
10.2 Capture 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 Capture Factory including without limitation Internet outages,
communications outages, fire, flood, war or act of God.
10.3 In the event that the Client wishes to cancel the creation of the
Photographs by Capture Factory or the provision of photographic
services in accordance with this Agreement (save in the event of a
material breach by Capture Factory of a fundamental term of this
Agreement) at any time, Capture Factory shall be entitled to recover
the following proportions of the Fees:
10.3.1 where such cancellation is communicated to Capture Factory more
than 48 hours in advance of the Shoot Date Capture Factory shall not be
entitled to any proportion of the Fees;
10.3.2 where such cancellation is communicated to Capture Factory
within the period between 48 hours and 24 hours in advance of the Shoot
Date, Capture Factory shall, at its option, be entitled to recover 50% of
the Fees;
10.3.3 where such cancellation is communicated to Capture Factory
within the period of 24 hours before the Shoot Date, or if any such
cancellation is not communicated to Capture Factory at all, Capture
Factory shall, at its option, be entitled to recover 100% of the Fees;
10.4 During the course of this Agreement and for a period of 12 months
afterwards, the Client shall not solicit the staff of Capture Factory or
any person employed or engaged by Capture 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. GENERAL
11.1 Nothing 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.
11.2 If at any time any part of this Agreement is or becomes unenforceable,
such part will at Capture Factory’s option be construed as far as
possible to reflect the parties’ intentions and the remainder of the
provisions will remain in full force and effect.
11.3 No 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.
11.4 The Client shall not assign the benefit or burden of this Agreement
without the prior written consent of Capture Factory.
11.5 No 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.
11.6 These 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.