“The Purchaser” the party ordering the Products and Services hereby contracted for.
“Products and Services” all forms of goods, materials, licences to use intellectual property and media services, including but not limited to, the production of still and moving photographic images, website design, software and other digital products, promotional and advertising materials, advice and planning in relation all of the foregoing and such other services as might from time to time be provided and included in the description of “Products and Services” to be supplied under and in accordance with any specification for such Products and Services as may be requested by a purchaser and agreed to by the Supplier.
“Special Terms of Payment” means any conditions as to payment of the price as might be agreed between the Supplier and Purchaser including, but not limited to, terms as to dates when invoices shall be rendered, when payments will become due, payment by deposit, payment by instalments and time within which payments shall be made (including provisions for interest on overdue payments) which are specifically noted on any purchase order.
“Date of Supply” means, unless otherwise provided for in any Special Terms of Payment, the date on which the Products and Services are delivered to the Purchaser or the Products and Services are available for the Purchaser’s use on a website or are to provided elsewhere in any medium and “Delivery” shall be construed accordingly.
“Images” means any photographic image or images whether digital or not and whether moving or still and any graphic or digital representation in any form of any person, building, object, event, activity, function, performance or anything capable of being photographed or filmed or graphically represented.
Terms of Service
The Supplier hereby agrees to supply and the Purchaser agrees to purchase the Products and Services described in the Supplier’s Purchase Order relating to the supply, for the price therein specified.
The Purchaser agrees to pay the said price in accordance with any Special Terms of Payment noted on the face of the Purchase Order but in default of the specification of any such Special Terms of Payment, the price payable under this contract shall be paid in full within 28 days of the date of the invoice rendered in respect of the provision of the said services. All prices quoted and/or stated on a purchase order shall be subject to the addition of VAT whether the amount of VAT is calculated or specified on the face of the purchase order or not.
Subject to any Special Terms of Payment, the Supplier shall be at liberty to raise, date and render an invoice on the Date of Supply or at such later date as in its absolute discretion it shall see fit to do so.
In the event that any payment due in accordance with any Special Terms of Payment or in accordance with the provisions of clause 2 hereof is not received by the Supplier on the due date then interest, compounded at the end of each month, shall be payable on any outstanding balance at a rate of 3% per annum above the Bank of England base rate of interest prevailing for the time being and from time to time.
The Purchaser shall reimburse the Supplier on a full indemnity basis all costs and solicitor’s fees and disbursements incurred in connection with the recovery of any money due under the terms of the contract.
It is expressly agreed that prompt payment of the price is of the essence of the contract and in default of payment as and when the same falls due, the Supplier shall be at liberty (and any subsequent contract between the parties shall contain a terms to this effect) to cease all work on any supply for the benefit of the Purchaser in which it might be engaged until such payment as is due hereunder is made.
Except with the agreement in writing of the Supplier the Purchaser agrees that it is not entitled to make any deduction from any payment of price due to the supplier hereunder on account of any claimed set-off, cross claim, claim to damages or compensation or any form of counter-claim of whatsoever nature or status and howsoever said to arise.
Where the Supplier and Purchaser contract in one agreement for the provision of Products and Services comprising separate parts or components (such that they are capable of separate supply and delivery) the Purchaser shall not be entitled to treat a breach of contract in relation to any one or more of the separate components or parts as a breach or repudiation of the entire agreement but shall be required to take delivery of and make payment for, the separate components or parts in accordance with the terms of this agreement. The Purchaser further agrees that it shall not be at liberty to defer or avoid payment in respect of any such duly delivered component or part on account of any claim it may seek to bring in respect of any alleged breach of contract in respect of any other component of part of the Products and Services to be supplied pursuant to this agreement.
The purchaser agrees that the risk in any Products and Services supplied to it pursuant to the terms of this agreement shall pass upon delivery.
The Supplier will use its best endeavours to deliver the Products and Services within a reasonable time of the acceptance of the purchase’s order. Any date for delivery given by the Supplier is an estimate given in good faith and the Supplier shall use its best endeavours to meet such date. Since however the parties recognise that there may be circumstances arising beyond the control of the supplier, which may delay delivery, the parties agree that any time stated for delivery shall not be of the essence of the contract.
Notwithstanding delivery of the Products and Services and the passing of risk as aforesaid, the property therein shall remain with the Supplier until payment is made in full. In respect of intellectual property of or created by the Supplier comprised in or supplied with the Products and Services hereby contracted for, in respect of which only an irrevocable permanent licence to use in the course of the Purchaser’s business is hereby granted, such licence will not become effective until payment in full is received hereunder.
The Purchaser shall inspect or otherwise satisfy itself such as by testing if necessary that the Products and Services supplied hereunder are in conformity with contractual requirements within 14 days of delivery and immediately upon discovery of any non-conformity inform the supplier of the alleged non-conformity. If the purchaser shall fail to give such notice then the Products and Services shall be conclusively presumed to be in accordance with the contractual specification in all respects and the Purchaser will not be entitled to reject the Media Supplies or Services or any part or component thereof or claim in respect of any non-conformity, damage, shortage or other alleged defect.
In the case of any defect or damage or non-conformity which would not have been apparent on such reasonable inspection or testing but which later becomes apparent in the course of use, the Purchaser shall notify the Supplier of the existence thereof within 14 days otherwise the provisions of the second sentence of clause 12 above shall apply.
In the event that upon notice of defect it is found that the Products and Services or any part or component thereof is not in accordance with contractual requirements, the Purchaser will at its option either repair or replace or re-create or re-provide the Products and Services contracted for or within 14 days of its acceptance of the defect, refund the price (if already paid) in full.
Subject to clauses 16 d) and e) below, the Supplier’s liability to the Purchaser in respect of the supply of the Products and Services under this clause 15 and 16 below shall be to the exclusion of all other liability to the Purchaser whether arising in contract tort, delict or breach of statutory duty or otherwise for defects in the Products and Services or for any loss or damage caused by the Products and Services or their use, and all other terms conditions warranties representations concerning the Products and Services whether express or implied by statute at common law or otherwise howsoever are hereby excluded.
In particular but without limitation of the generality of the exclusion of liability in clause 15 and subject again to clauses 16 d) and e) below:
The Supplier makes no representation and gives no warranty that the Products and Services are fit for any particular purpose or are of merchantable or any other particular quality, whether express or implied by statute or at common law.
The Supplier agrees that it will exercise reasonable skill care and diligence in carrying out its works and obligations in the course of its supply but the Purchaser accepts and agrees that the Supplier will be under no liability whatsoever whether arising in contract, tort, delict or breach of statutory duty in respect of any indirect or consequential loss, including but not limited to, any increased costs or expenses, loss of profits, loss of business goodwill, lost income or savings and liability to any third party that might be suffered by the Purchaser in the event of any breach of this contract of supply by the Supplier, whether arising as a result of any deficiency in or failure of the Products and Services supplied hereunder, or any delay in performance or non-performance by the Supplier howsoever the same might arise and whether as a result of the negligence of the Supplier, its servants or agents or by any other means. The Supplier’s liability to the purchaser howsoever arising shall in no circumstances exceed, and shall always be limited to, the return of the price.
The supplier does not accept any liability in respect of any loss or damage of whatever type (including indirect or consequential loss as defined in clause 16 b) above) and howsoever arising, in consequence of any failure of any equipment or media in the recording, storing, transferring, manipulating, editing or other process creating or dealing with, Images; whereby such Images are not recorded or are lost or are not reproducible. For the avoidance of doubt the parties accept the existence of such risk but have agreed hereby that the risk, or the cost of insuring against it, should be borne by the Purchaser and that allocation of risk is reflected in the price payable for the services provided hereunder. This clause is consequently subject to any Special Terms of Payment which provide for acquisition of insurance cover, the terms thereof, the payment of insurance premium and the beneficiary under the policy which terms will be set out in the Purchase Order in the event that the Purchaser wishes the Supplier to obtain for the Purchaser’s benefit, insurance against these risks.
Nothing in these conditions shall operate or be construed so as to exclude or restrict the liability of the Purchaser for the death or personal injury resulting from the negligence of the Purchaser its servants or agents.
Nothing in these conditions shall operate or be construed so as to exclude or restrict the statutory rights of any person who as Purchaser deals as a Consumer where the contract entered into is a consumer transaction as defined in the relevant Directive and Legislation (including any regulations made there under) giving effect thereto or as may subsequently be amended from time to time.
The Supplier shall not be responsible for any delay or failure to fulfil any of its obligations under this contract nor be liable for any loss or damage suffered by the Purchaser by reason of any delay in delivery of the Products and Services or any part or component thereof caused directly or indirectly by any act of God, war, government restriction, strike, lock-out, trade dispute, fire, theft, flooding, breakdown of equipment, loss or premises, failure of essential supplies for production or any other cause whatsoever beyond the control of the Supplier.
The Purchaser warrants that it is the owner of and entitled to use all logos, designs and all other intellectual property incorporated into or supplied with any Products and Services which it has provided to the Supplier for such purpose and agrees to indemnify and hold harmless the Supplier in respect of any claim, action proceedings or liability, including the costs of defending such claims actions or proceedings (which costs shall become immediately payable as they are incurred), to which the Supplier might be subjected in the event of any unauthorised or unlicensed use of design, trade marks or any other intellectual property belonging to another which the Purchaser is not entitled to use.
Insofar as there may be incorporated into or supplied with or form part of the Products and Services supplied pursuant to this agreement, intellectual property of any type or form (including but not limited to copyright, design right or similar rights), and subject to any Special Terms of Payment which may relate to any licence to use and enjoy intellectual property supplied hereunder, the Supplier hereby grants an irrevocable permanent licence to the Purchaser to use such of the Supplier’s intellectual property which is supplied hereunder (title to which shall remain with the Supplier) for any purpose whatsoever in the course of its business. The Supplier grants no other licence in respect of any other intellectual property which the Purchaser wishes to be incorporated in or is included with the Products and Services to be supplied, (its wishes being signified by its acceptance of the Products and Services to be supplied hereunder) for which incorporation or inclusion the Purchaser accepts responsibility and any liability to any third party arising thereby; accordingly the Purchaser undertakes to make its own arrangements for the use of such other intellectual property and warrants that it will do so.
Any quotation relating to Products and Services supplied by the Supplier whether contained or publicised on its website or other promotional material shall not constitute an offer capable of acceptance by a Purchaser but an invitation to treat. A purchase order shall only be accepted by the Supplier at its discretion and any contract concluded thereby shall be exclusively upon the terms herein.
These conditions shall override any contrary, different or additional terms or conditions contained or referred to in a Purchaser’s order, letter or oral request for Products and Services notwithstanding that the same may be communicated or delivered to or signed by or on behalf of the Purchaser and/or the Supplier subsequent to the date of this purchase order being accepted by the Supplier. The terms of this contract embodied herein may be modified at the Purchaser’s request, only by express variation in writing signed by the parties, making express reference to this clause 21 and the parties agreeing that it shall not apply.
In the event of the Purchaser committing any breach of any term or condition of this contract, going into liquidation, having a receiver, administrator or other similar office holder appointed over the whole or any part of its property or assets, becoming bankrupt or insolvent or entering into any arrangement or composition with its creditors, the Supplier shall be entitled without notice and without any liability arising to terminate the contract forthwith and enter onto any of the Purchaser’s premises forthwith and access any of its equipment in order to recover possession of any Products and Services or any part or component thereof in which property has not passed to the Purchaser. The Purchaser shall be under a continuing obligation to facilitate the recovery by the Supplier of all such items or copies thereof in which property has not passed to the Purchaser.
Upon such termination of the contract the Supplier shall be at liberty to cancel any other existing contract for the supply of Products and Services to the Purchaser and to dispose of any Products and Services obtained, created or prepared in order to fulfil such contract as it sees fit.
Termination of the contract shall not affect any accrued liability of the Purchaser or the Supplier’s rights to recover any loss or damage it may have suffered from the Purchaser in consequence of such termination.
No failure or delay on the part of the Supplier will shall amount to a waiver of any rights arising hereunder which shall remain in full force and effect.
If any term of this provision of this agreement shall be held by reason of any rule of law to be unenforceable or of no effect, the remaining provisions of this contract shall remain in full force and effect with the offending provision being deleted.
This contract and these conditions shall be construed in accordance with English Law which shall be the governing law of the Contract and any disputes arising hereunder shall be resolved by the Courts in England which, subject to any ad hoc agreement to arbitrate any dispute, shall have exclusive jurisdiction.