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 Vanilla PoD Photography (“Vanilla PoD”) and the Client who orders photographic services from Vanilla PoD (“Client”) and which shall constitute the entire agreement between Client and Vanilla PoD and apply to any trading agreement or other contract or arrangement between Client and Vanilla PoD;
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 byVanilla PoD.
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 Vanilla PoD 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 Vanilla PoD to Client as is communicated to the Client either through the website of Vanilla PoD 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 Vanilla PoD for delivery of the Photographs. “The Photographs” shall mean the photographic works requested by the Client and supplied by the Vanilla PoD in accordance with this agreement. “The Shoot Date” s hall mean the date agreed by Vanilla PoD 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 Vanilla PoD.
3. Vanilla PoD
3.1 In consideration of the payment by the Client to Vanilla PoD of the Fees, Vanilla PoD 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 Vanilla PoD 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 Vanilla PoD and provide on request such source materials as are required to create the Photographs (“Client Content”) as Vanilla PoD is to incorporate into the Photographs or Vanilla PoD require to carry out its obligations hereunder.
5. PAYMENT
5.1 The Client shall pay Vanilla PoD the Fees without deduction or setoff within 30 days of receipt of a valid invoice.
5.2 The Client shall provide Vanilla PoD 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 Vanilla PoD is an estimate only. The Fees shall be set on the basis set out from time to time on the website of Vanilla PoD and may be less than, or more than, the Total Fees Estimate.
5.4 Vanilla PoD 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 Vanilla PoD 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 Vanilla PoD’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”), Vanilla PoD 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 Vanilla PoD, Vanilla PoD 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 Vanilla PoD shall be entitled to charge a one off fee of £40 for debts up to £1000, £70 thereafter to £10,000 plus interest on any overdue payment at the rate of 4% over base rate of the Bank of England 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 world wide whether registered or not of whatever nature in material devised, created or commissioned by Vanilla PoD, in supplying the Photographs and under this Agreement will vest in and belong to Vanilla PoD unless otherwise agreed in writing and signed by both Parties. Vanilla PoD may include within the Photographs reasonable copyright notice and credit.
6.2 Vanilla PoD 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 Vanilla PoD 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 Vanilla PoD is specifically requested to proceed with and not to any original ideas, concepts or proposals of Vanilla PoD pitched or suggested to the Client, all of which shall be retained by Vanilla PoD.
6.4 Vanilla PoD 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 Vanilla PoD’s commercial endeavours to contact the Client are unsuccessful or if the approval for use of the Photographs by Vanilla PoD is withheld without the Client setting out reasonable grounds for withholding that approval, Vanilla PoD shall be entitled to use the Photographs without further reference to the Client. Nothing in this clause 6.4 shall give Vanilla PoD any right to grant further licences to use the Photographs in relation to any third party.
6.5 The Client grants Vanilla PoD 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 Vanilla PoD these rights and that the Client Content are free of racist, defamatory, obscene and other legally restricted material.
6.6 The Client undertakes to Vanilla PoD to indemnify and hold harmless Vanilla PoD in full and defend at its own expense Vanilla PoD 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 Vanilla PoD 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 Vanilla PoD shall, on the Delivery Date, provide an FTP, or link, upload to Client’s designated server or folder. 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 Vanilla PoD 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 Vanilla PoD immediately if it wishes to claim that the Photographs are defective in accordance with clause 7.2 above whereupon Vanilla PoD 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 Vanilla PoD 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 Vanilla PoD 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, Vanilla PoD’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 Vanilla PoD 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 Vanilla PoD 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 Vanilla PoD, it shall have no liability to the Client for any misunderstanding or misrepresentation, which may arise in relation there to except in relation to fraudulent misrepresentations.
8.5 Vanilla PoD 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 21 month of completion of the works, failing which, Vanilla PoD may dispose of it.
9. LEGISLATION AND THIRD PARTY MATERIALS
9.1 The Client shall be responsible for and notify Vanilla PoD 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. Vanilla PoD 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 Vanilla PoD gives no warranty, representation or undertaking in relation to any third party materials or works.
9.3 Subject to and provided that Vanilla PoD 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 Vanilla PoD 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.