1.1 This document contains the full contractual terms and conditions upon which the Customer agrees to purchase from Packshot Creative (“the Company”). The Customer’s email of acceptance will constitute acceptance by the Customer that these Terms apply exclusively to the Contract and neither party has relied on any representation made by the other party unless such representation is expressly included herein. No other contractual terms and conditions will apply, nor will any variation to these terms be allowed, unless specifically agreed in writing by the Company. No other employee, representative, or agent of the Company has authority to vary or amend these Terms in any way whatsoever.
1.2 Acceptance by The Customer of these terms and conditions shall be made by the Customer upon acceptance of a written quote from Packshot Creative
2.For the purposes of this agreement, the following expressions shall have the following meanings:
2.1 “Customer Content” shall mean all materials , goods and products provided by the Customer to Packshot Creative for inclusion or incorporation into the Photographs or to be used in conjunction with the Photographs.
2.2 “The Work” shall mean the photographs, graphics , computer files , and other media created by Packshot Creative pursuant to the order and instructions and specifications agreed by Packshot Creative with the Customer.
2.3 “The Fees” shall mean the payment for the provision of The Work by Packshot Creative to Customer as is communicated to the Customer either through the website of Packshot Creative or by any other means. The Fees shall include any third party Fees payable in the creation of the Work.
2.4 “The Delivery” Date shall mean the date agreed by the Customer and Packshot Creative for delivery of the Work.
2.5 “The Shoot Date” shall mean the date agreed by Packshot Creative and the Customer upon which the Work will be created.
AMOUNT OF FEES
- The Customer shall pay Fees to Packshot Creative for the The Work as may be agreed and as set out in, and emailed to Packshot Creative by , the Customer’s email of acceptance.
3.1 Packshot Creative may charge additional Fees in accordance with its then prevailing rates in the event of:
3.1.1 delays or additional works caused or required by the Customer including its failure to properly and / or timeously provide Packshot Creative with such information, Customer Content, instructions, media or approvals as are reasonably required for the supply of the Photographs;
3.1.2 changes to the cost of labour, materials, services and other circumstances outside of Packshot Creative ‘s reasonable control.
3.1.3 Customer requiring the supply of Photographs, goods and services in addition to those requested or any variations to the Photographs;
3.1.4 agreed third party expenses.
3.2 In the event that the Customer requires any change or alteration to the Work (“Change”), Packshot Creative and the Customer shall, prior to such change being effective or implemented, agree:
3.2.1 the nature of the Change;
3.2.2 the procedures for implementation of such Change; and
3.2.3 the variation to the Fees.
3.3 Until any Change is formally agreed in writing between the Customer and Packshot Creative, Packshot Creative will continue to perform and be paid for The Work as if the Change had not been proposed, unless otherwise requested by the Customer.
3.4 All and any Changes to the Work shall be reflected and accompanied by appropriate amendments to the Fees.
PAYMENT, INTEREST CHARGES AND DISCOUNT FOR PROMPT PAYMENT
4.1. Packshot Creative’s payment terms are for payment within 30 days from the date of delivery of our invoice. This can be by cheque or direct bank transfer to our account number xx-xx-xx xxxxxxx. Where ever possible invoices will only be sent out to the Customer by email.
4.2. Packshot Creative’s unpaid invoice interest charges accrue at a rate of 10% per annum charged on a daily basis after 30 days have elapsed. It is our policy to commence formal debt collection thought the County Court if no acceptable arrangement is made to pay within a further 30 days.
4.3 The Customer is entitled to a discount of 5% in Fees if payment is made online within 2 banking days of the invoice being sent to the Customer by email.
ACCEPTANCE OF WORK AND REMEDY OF DEFECTS
- The Customer shall inspect the Work upon it being delivered to them by Packshot Creative and shall bring to the attention of Packshot Creative any defects in the Work within 7 days of Packshot Creative delivering the Work. After such period of 7 days has elapsed the Customer shall be deemed to have inspected the Work and found it to be in accordance with Packshot Creative’s obligations under agreement and to have accepted it. Any defects to Work brought to Packshot Creative’s attention within 7 days shall be remedied by Packshot Creative.
COPYRIGHT AND CONFIDENTIALITY
6.1 Packshot Creative owns the copyright in the Work. Packshot Creative grants to the Customer a “Licence to Use”the Work immediately that the Work is accepted by the Customer. The Licence to Use may be revoked by Packshot Creative at any time , and shall be revoked in the event of an invoice for Fees for the work being unpaid.
6.2 The Licence to Use only applies to the Customer and its benefit shall not be assigned to any third party without Packshot Creative’s prior permission in writing. Accordingly, even where any form of ‘all media’ Licence is granted, Packshot Creative’s permission must be obtained before any use of the Work for other purposes such as use in relation to another product or sublicensing through a photo library.
6.3 Permission to use the Work 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 Work will be subject to these terms and conditions
6.4 Packshot Creative will treat the goods, products, services and commercially sensitive information which comes into its possession for the purposes of the performance of this Agreement in confidence and will not divulge such to a third party except for the purposes of fulfilling its obligations under this agreement and with the consent of the Customer, such consent not to be unreasonably withheld.
LIMITATION OF LIABILITY
7.1 Subject to Clause 6.2 below, Packshot Creative ’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 Creative to The Customer for the Work.
7.2 Nothing in this Agreement shall limit the liability of either party for death or personal injury caused by its negligence.
7.3 Packshot Creative shall not be liable to the Customer for any consequential loss or damage.
7.4 When instructions or advice are given or received orally by Packshot Creative it shall have no liability to the Customer for any misunderstanding or misrepresentation, which may arise in relation thereto except in relation to fraudulent misrepresentations.
7.5 Packshot Creative shall have no liability to the Customer in respect of the Customer Content (which means the goods or products of the Customer which Packshot Creative has been contracted to photograph). On completion of the Work the Customer agrees to collect the Customer Content within 2 months of completion of the works, failing which, Packshot Creative may dispose of it.
7.6 Packshot Creative will not be liable for any indirect or consequential loss, account for profits, wasted management time, damage, cost or expense of any kind whatsoever and howsoever arising (whether out of the provision of the Work or failure to provide the Work or otherwise), loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time, loss of goodwill or anticipated savings or any liability of the Customer to a third party, even if Packshot Creative has been advised of the possibility of such loss before or at the time this contract is entered into , the parties agreeing that it is reasonable for these liabilities to be excluded in the circumstances having regard to :
7.6.1 the respective strengths of the bargaining positions of Packshot Creative and The Customer,
7.6.2 the fact that no inducement has been offered to the Customer to enter into this term,
7.6.3 the Customer knows of the existence and extent of this term,
7.6.4 the ends of business efficacy are more effectively served by the Customer seeking their own insurance against such potential losses. You are strongly advised to review your own commercial insurance and ensure that it provides the cover you require for any such likely losses.
7.7 Packshot Creative accepts no responsibility for damage to goods in transit – the responsibility of goods remains with the carrier service. Packshot Creative recommends that if the goods to be transported are of significant value, insurance should be taken with the carrier company.
TERMINATION AND CANCELLATION
8.1 Packshot Creative shall be entitled to terminate this Agreement upon the Customer’s material breach (including without limitation non-payment of any sum due) unless the Customer remedies such breach within 7 days of its occurrence.
8.2 Packshot Creative 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 Creative including without limitation Internet outages, communications outages, fire, flood, war or act of God.
8.3 In the event that the Customer wishes to cancel the creation of the Work by Packshot Creative in accordance with this Agreement (save in the event of a material breach by Packshot Creative of a fundamental term of this Agreement) at any time, Packshot Creative shall be entitled to recover the following proportions of the Fees:
8.3.1 where such cancellation is communicated to Packshot Creative more than 48 hours in advance of the Shoot Date Packshot Creative shall not be entitled to any proportion of the Fees;
8.3.2 where such cancellation is communicated to Packshot Creative within the period between 48 hours and 24 hours in advance of the Shoot Date, Packshot Creative shall, at its option, be entitled to recover 50% of the Fees; 8.3.3 where such cancellation is communicated to Packshot Creative within the period of 24 hours before the Shoot Date, or if any such cancellation is not communicated to Packshot Creative at all, Packshot Creative shall be entitled to recover 100% of the Fees;
9.1 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.
9.2 If at any time any part of this Agreement is or becomes unenforceable, such part will at Packshot Creative ’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.
9.3 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.
9.4 The Customer shall not assign the benefit or burden of this Agreement without the prior written consent of Packshot Creative .
9.5 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.
9.6 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.
9.7 It is the Customer’s responsibility to ensure that the Terms of Business are entered into by a person duly authorised by the Customer to enter into contracts on their behalf whether as employee director agent or otherwise and the Customer agrees that it enters into and is bound by this contract where in all the circumstances it appears to Packshot Creative that Email of Acceptance has originated from the Customer’s email address.
To return to the Packshot Creative homepage click here