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Happy Finish Limited
Terms and conditions of business for clients.
Terms and conditions of business for clients.
1 Interpretation
1.1 In these Conditions the following expressions shall have the following meanings:
1.3 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2 Basis of Contract
2.1 Happy Finish shall provide the Happy Finish Services, the Retoucher shall provide the Retoucher Services and the Client shall purchase the Services in accordance with any Estimate accepted by the Client verbally or in writing, subject always to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any Estimate is accepted or purported to be accepted or any order is made or purported to be made by the Client.
2.2 These Conditions (together with the terms, if any, set out in the Estimate) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except as agreed in writing between Happy Finish and the Client. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
2.3 Happy Finish's employees, agents, contractors and Retouchers are not authorised to make any representations concerning the Happy Finish Services unless confirmed in writing by Happy Finish. In entering into the Contract, the Client acknowledges that it does not rely on and waives any claims for breach of any representations which are not so confirmed.
2.4 Acceptance of these Conditions shall (without limitation) be deemed upon the earlier of:
2.4.1 Acceptance of any Estimate by or on behalf of the Client (whether verbally or in writing);
2.4.2 Provision of a purchase order to Happy Finish and/or a Retoucher by or on behalf of the Client (whether verbally or in writing); and
2.4.3 Engagement of a Retoucher by the Client (and/or any of its affiliates).
3 Supply of the Happy Finish Services
3.1 Happy Finish shall provide the Happy Finish Services to the Client subject to these Conditions. Any changes or additions to the Happy Finish Services or these Conditions must be agreed in writing by Happy Finish and the Client.
3.2 The Happy Finish Services are limited to recommending and/or introducing a Retoucher to the Client. The Retoucher Services are subject to separate contract and agreement between the Client and the Retoucher and are not the responsibility of Happy Finish.
3.3 Happy Finish shall use its reasonable endeavours to ensure the suitability of any Retoucher recommended and/or introduced to the Client but Happy Finish makes no warranty or representation as to the suitability of any Retoucher and the Client should satisfy itself on all such matters.
3.4 Happy Finish's responsibilities to the Client are to verify references and qualifications and to select Retouchers that it reasonably considers suitable for the Retoucher Services in accordance with the Client's requirements as to skills and experience as notified in writing to Happy Finish. It is the Client's responsibility to supply Happy Finish with sufficient information and to respond honestly and accurately to Happy Finish's questions to enable Happy Finish to select a Retoucher with suitable abilities, qualifications and skills.
3.5 The Client acknowledges and agrees that Happy Finish may provide all information it receives from the Client in relation to its identity, the Retoucher Services it requires and otherwise to any Retoucher or prospective Retoucher it intends to recommend and/or introduce to the Client.
3.6 The Client shall, at its own expense, supply Happy Finish and/or the Retoucher with all necessary Documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable to Happy Finish and the Retoucher to provide the Services in accordance with the Contract. The Client shall ensure the accuracy of all Input Material.
3.7 Happy Finish shall use all reasonable endeavours to provide the Happy Finish Services in accordance with the Estimate and as otherwise agreed between Happy Finish and the Client from time to time, subject to these Conditions, but the Client acknowledges and agrees that time of performance of the Services is not of the essence of the Contract.
3.8 Happy Finish may correct any typographical or other errors or omissions in any brochure, promotional literature, estimate or other document relating to the provision of the Services without any liability to the Client.
3.9 Happy Finish may at any time, without notifying the Client, make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
4 Retouchers and Retoucher Services
4.1 Retouchers are independent contractors, not employed or sub-contracted by Happy Finish, but solely recommended and/or introduced by Happy Finish to the Client in accordance with these Conditions.
4.2 Retouchers are solely selected and engaged directly by the Client.
4.3 The Retoucher has full and exclusive control over how the Retoucher Services are to be provided and terms of engagement between the Client and the Retoucher are as agreed between the Client and the Retoucher, subject to the Estimate and these Conditions. Happy Finish accepts no liability for the Retoucher Services.
4.4 If the Client (and/or any affiliate of the Client) engages a Retoucher recommended or introduced by Happy Finish (whether or not such Retoucher has provided any Retoucher Services to the Client) other than through Happy Finish, the Client must promptly inform Happy Finish of such engagement and the Retoucher Charges for such engagement. The Client shall keep Happy Finish fully informed as to the Retoucher Charges for such engagement and Happy Finish shall have the right to charge the Happy Finish Commission in relation to such engagement as detailed Condition 5.3. Such Happy Finish Commission may be charged to and payable by the Client and/or the Retoucher. This Condition shall apply to any and all engagements which commence whilst the Retoucher is generally represented by Happy Finish and for twelve (12) months thereafter. This Condition shall survive the termination of the Contract for any reason.
4.5 The Client shall provide Happy Finish with all information requested by Happy Finish promptly upon request for the purpose of Happy Finish carrying out an audit of the Client's compliance with the Contract. If any audit performed under this Clause reveals a breach of the terms of the Contract the Client shall bear all Happy Finish's reasonable costs and expenses of such audit.
4.6 Happy Finish accepts no liability for any loss arising to the Client or otherwise if the Retoucher engaged by the Client is unable, for any reason, to complete the Retoucher Services. Happy Finish will, at the Client's request, use its reasonable endeavours to recommend and/or introduce an alternative Retoucher to carry out and/or finalise the Retoucher Services as appropriate subject to these Conditions. It is at the Client's discretion as to whether to engage any alternative Retoucher and, for the avoidance of any doubt, the cancellation fee referred to in Condition 5.4 will not apply if the Client decides not to proceed with an alternative Retoucher and to cancel the Contract on that basis. A proportion of the original Retoucher's Charges (and associated Happy Finish Commission) may apply for Retoucher Services already carried out.
4.7 For colour adjustment work, including colour matching to product samples, Happy Finish accepts no responsibility for any final third party print reproduction and the Client acknowledges and agrees that printing is subject to the inherent limitations of the final output and file format required, such as (by way of example only) the approximation of CMYK print proofs and image files to RGB image files.
4.8 Delivery of Retouched Input Material will be made in a flattened Tiff or Jpegs in RGB format unless previously agreed as CMYK, and not layered files unless previously agreed in writing by Happy Finish and/or the Retoucher.
5 Charges
5.1 Subject to any special terms agreed in the Estimate, the Client shall pay the Retoucher's Charges and Happy Finish Commission and any additional sums which are agreed between Happy Finish and/or the Retoucher and the Client for the provision of the Services or which, in Happy Finish's or the Retoucher's sole discretion, are required as a result of the Client's instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.
5.2 If an Estimate for the Retoucher Services has been provided by Happy Finish, the Happy Finish Commission for those specific Retoucher Services estimated is included in the Retoucher's Charges and is not in addition.
5.3 Otherwise, if a Retoucher provides any Retoucher Services for the Client (and/or any affiliate of the Client) which are not included in an Estimate (whether as part of the original Retoucher Services or as a separate engagement at the same time or at another time), the Happy Finish Commission is chargeable in addition and may (at Happy Finish's sole discretion) be charged directly to the Client and/or the Retoucher at Happy Finish's standard commission rate from time to time. This Condition shall apply to any and all engagements which commence whilst the Retoucher is generally represented by Happy Finish and for twelve (12) months thereafter. This Condition shall survive the termination of the Contract for any reason.
5.4 Happy Finish reserves the right to charge a cancellation fee (on behalf of itself and the Retoucher) of twenty-five percent (25%) of the Estimate if the Client cancels the Contract after acceptance (as referred in Condition 2.4). Cancellation after commencement of any of the Retoucher Services by the Retoucher may incur the cancellation fee and/or the Retoucher's standard charges for the Retoucher Services carried out, whichever is greater.
5.5 The Retoucher's standard editorial price per image usually includes up to two (2) A4 proofs/images and a limit of the initial brief plus three (3) Client comment rounds unless specifically agreed otherwise between the Client and Happy Finish and/or the Retoucher.
5.6 The Retoucher's standard editorial rate is subject to images being used solely in editorial stories. If any images are used for any other purpose, including without limitation advertising, they will be charged at the full advertising rate. The Retoucher also reserves the right to charge the full advertising rate if a credit is not given to Happy Finish and the Retoucher, in the form approved by Happy Finish, on editorials as well as for subsequently published portfolio and test images.
5.7 The Client shall reimburse Happy Finish and the Retoucher for all reasonable expenses incurred by Happy Finish and the Retoucher in the course of performing the Services for the Client including all reasonable travelling, subsistence and other non-incidental expenses including, without limitation, all delivery expenses, couriers and delivery media costs (such as DVD or FTPs). This applies to both fixed price and non-fixed price Estimates.
5.8 Happy Finish shall be entitled to vary the Happy Finish Commission from time to time upon notice to the Client.
5.9 All Charges estimated to the Client for the provision of the Services are exclusive of any applicable Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
5.10 Unless otherwise agreed between Happy Finish and the Retoucher, Happy Finish will invoice the Client on behalf of itself and the Retoucher. The Retoucher Charges and Happy Finish Commission and any additional sums payable should be paid by the Client (together with any applicable Value Added Tax, and without set off or other deduction) in pounds sterling within thirty (30) days of the date of Happy Finish's invoice.
5.11 The provision of final Retouched Input Material to the Client will be deemed acceptance of satisfactory completion of the Services (whether or not formal acceptance is given by the Client). Where delivery of the Retouched Input Material or progression of the job is delayed by the Client without reasonable cause connected with the Services, Happy Finish reserves the right to invoice the Client (on behalf of itself and the Retoucher) on a pro-rata basis for the proportion of the Services completed at the point of delay.
5.12 All export, import, VAT, sales, use or other taxes, levies, duties, fees, governmental charges, exchange rate losses, bank charges and transfer fees shall be the sole responsibility of the Client, and all payments to Happy Finish and the Retoucher shall be exclusive of such charges and losses. If the Client is required to withhold any tax or governmental charge on such payments or pay any additional fees or expenses or exchange any foreign currency into pounds sterling, then the amount of any such payment shall be automatically increased to offset such charges and losses, so that the net amount paid to and received by Happy Finish and the Retoucher always equals the amount invoiced or otherwise due.
5.13 Happy Finish (on behalf of itself and the Retoucher) may, at the Client's request, invoice a third party (such as an advertising agency, trading vehicle owned by the photographer or photographic agency). However should Happy Finish not receive full payment (for itself and the Retoucher) from the third party billing details supplied by the Client within Happy Finish's credit terms, then Happy Finish (on behalf of itself and the Retoucher) will be entitled to invoice the Client directly for the Services undertaken.
5.14 If full payment is not made by the due date, Happy Finish (on behalf of itself and the Retoucher) shall be entitled, without limiting any other right it may have, to:
5.14.1 charge interest on the outstanding amount (both before and after any judgement) at the rate of one percent (1%) per calendar month (compound interest) from the due date until the outstanding amount is paid in full;
5.14.2 suspend provision of any of the Services (by Happy Finish and/or the Retoucher) without liability to the Client until the outstanding amount is paid in full and any times agreed for the provision of the Services shall be amended accordingly; and/or
5.14.3 terminate the Contract in accordance with Condition 8.2.1 below.
6 Rights in Input Material and Output Material
6.1 The property and any copyright and all other intellectual property rights in:
6.1.1 any Input Material and Retouched Input Material shall belong to the Client;
and
6.1.2 any Output Material (including layered files) shall belong to Happy Finish and the Retoucher.
6.2 Provided that the following shall not apply to any Documents or other materials, data or other information which are required by law to be disclosed or are public knowledge at the time when they are provided by either party, and shall cease to apply if at any future time they become public knowledge though no fault of the other party:
6.2.1 any Input Material and Retouched Input Material, or other information provided by the Client, which is so designated by the Client shall be kept confidential by Happy Finish, save that Happy finish may disclose such information to the Retoucher or any prospective Retoucher for the purposes of the Contract and Happy Finish accepts no responsibility for any breach of confidentiality by the Retoucher which is a matter between the Retoucher and the Client; and
6.2.2 all Output Material (including any layered files), or other information provided by Happy Finish or the Retoucher, which is so designated by Happy Finish or the Retoucher shall be kept confidential by the Client.
6.3 The Client shall be solely responsible for obtaining any clearances, permissions or otherwise in respect of third party copyright works, trade marks, designs or other intellectual property. Neither Happy Finish nor the Retoucher accepts any liability for failure on the part of the Client to do this.
6.4 The Client warrants that any Input Material, and its use by Happy Finish and the Retoucher for the purpose of providing the Services, will not infringe the copyright or any other rights of any third party, and the Client shall indemnify Happy Finish and the Retoucher from and against all and any claims, proceedings, penalties, losses, damages, costs and expenses (including legal expenses) suffered or incurred by Happy Finish and/or the Retoucher arising from any such infringement or alleged infringement.
7 Warranties and Liability
7.1 Happy Finish warrants to the Client that the Happy Finish Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with, and within the times referred to in, the Estimate.
7.2 Neither Happy Finish nor the Retoucher shall have any liability to the Client for any loss, damage, costs, expenses or any other claims for compensation, arising from any Input Material or instruction supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival on non-arrival, or any other fault of the Client.
7.3 The Client shall, at its own expense, retain duplicate copies of all Input Material and insure against its accidental loss or damage by the Client, Happy Finish the Retoucher or otherwise. Neither Happy Finish nor the Retoucher shall have any liability for any such loss or damage, however caused, or for any loss, damage, theft or destruction of Input Material. All Deliverables shall be at the sole risk of the Client from the time of delivery to, or to the order of, the Client and, whilst archiving of finished jobs does routinely take place at Happy Finish, neither Happy Finish nor the Retoucher accepts any responsibility for Deliverables, including electronic retouched files, once delivery has taken place. It is the Client's sole responsibility to ensure that adequate care, provision and insurance of backups of Input Materials and Deliverables are maintained.
7.4 Happy Finish shall not be liable for the Retoucher or any Retoucher Services and the Retoucher shall not be liable for Happy Finish or any Happy Finish Services.
7.5 Except in respect of death or personal injury caused by the negligence of Happy Finish (with regard to Happy Finish's liability) or the Retoucher (with regard to the Retoucher's liability), or their respective employees or agents, or as expressly provided in these Conditions:
7.5.1 Neither Happy Finish nor the Retoucher shall be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or indirect, special or consequential loss, damage, costs, expenses (whether caused by the negligence of Happy Finish (with regard to Happy Finish's liability) or the Retoucher (with regard to the Retoucher's liability), or their respective employees or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client; and
7.5.2 the entire liability of Happy Finish and the Retoucher to the Client and/or any other third party under or in connection with the Contract shall not exceed fifty thousand pounds sterling (£50,000) in aggregate.
7.6 Neither Happy Finish nor the Retoucher shall be liable to the Client, or be deemed to be in breach of the Contract, by reason of any delay in performing, or any failure to perform, any of the Services, if the delay or failure was due to any event of Force Majeure. Should any such event of Force Majeure occur for longer than six (6) weeks Happy Finish (on behalf of itself and the Retoucher) may cancel or suspend the Contract without incurring any liability for any loss or damage thereby occasioned.
7.7 If the Client does not consider that Happy Finish's or the Retoucher's limit of liability as detailed in the Contract (particularly but without limitation Condition 7) will be sufficient to protect its interests, the Client should contact Happy Finish and/or the Retoucher, as appropriate, and Happy Finish or the Retoucher will be pleased to discuss with the Client whether it is able to amend its limits and/or increase its insurance cover accordingly. The Client accepts that Happy Finish and/or the Retoucher shall be entitled to charge the Client, and the Client shall pay, an additional fee for accepting any different limit if Happy Finish or the Retoucher, as appropriate, agrees to do so.
8 Termination
8.1 The Client shall only be entitled to cancel the Contract on prior written notice to Happy finish and in accordance with Condition 5.4.
8.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other, if the other:
8.2.1 fails to pay when due any sums due under these Conditions;
8.2.2 commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within fourteen (14) days after being required by written notice to do so;
8.2.3 (in the case of a company) goes into liquidation, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed; or
8.2.4 (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
8.3 Upon the termination of the Contract for whatever reason, all Charges for the Services carried out up until the date of termination shall become immediately due and payable by the Client to Happy Finish.
9 General
9.1 The Contract is personal to the Client and the Client shall not assign, transfer or subcontract or purport to assign, transfer or sub-contract to any other person any of its rights or obligations under the Contract without the prior written consent of Happy Finish.
9.2 Happy Finish may assign, transfer or sub-contract any of its rights and obligations under the Contract to any other party without the consent of the Client. 9.3 Any notice required or permitted to be given under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
9.4 No failure or delay by Happy Finish in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by Happy Finish of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected. 9.6 Save for the Retouchers who shall have such rights, a person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
9.7 Without prejudice to the generality of Condition 9.6 and subject always to anything to the contrary agreed in writing directly between the Retoucher and the Client, the Retoucher shall be entitled to rely upon the rights, benefits and limitations of liability in the Contract as against the Client and, in particular but without limitation, Conditions 5, 6 and 7.
9.8 English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English Courts.
1.1 In these Conditions the following expressions shall have the following meanings:
"Charges" the Happy Finish Commission and/or the Retoucher
Charges as the context requires;
"Client" the person named on the Estimate for whom Happy Finish has agreed to provide the Services in accordance with these Conditions (including where requests are made through an intermediary acting on behalf of the Client).
If no formal estimate is created or no client is specifically named on the formal estimate then the client is defined as the person without whom Happy Finish would have been unlikely to have been commissioned for the job and with whom Happy Finish has an existing client relationship;
"Conditions" the standard terms and conditions for the supply of the Services set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Happy Finish and the Client as set out in the Contract;
"Contract" the contract for the provision of the Services including the Estimate and these Conditions;
"Deliverables" Retouched Input Material and any other Output Material to be delivered to, or to the order of, the Client;
"Document" includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data and any photographic film, prints, negatives, transparencies, image files, laptops, hard drives and flash drives;
"Estimate" Happy Finish's and the Retoucher's estimate for the Services;
"Force Majeure" any cause beyond Happy Finish's reasonable control including, without limitation, any act of God, war, terrorism, civil disturbance, requisitioning, governmental or parliamentary restrictions, prohibitions or enactments of any kind, import or export regulations, strike lock-out or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining workmen or materials, breakdown of machinery, fire, accident, adverse weather or failure of couriers to deliver on time;
"Happy Finish" Happy Finish Limited, company registration number 05144546, with its principal place of business at Unit 36 Cremer Business Centre, 37 Cremer Street, London E2 8HD;
"Happy Finish Commission" the charges charged by Happy Finish to the Client for Happy Finish's Services as set out in the Estimate as amended from time to time by agreement between the Client and Happy Finish and/or as otherwise agreed between Happy Finish and the Client;
"Happy Finish Services" the services to be provided by Happy Finish for the Client being the recommendation and/or introduction of a Retoucher to the Client as may be more particularly referred to in the Estimate;
"Input Material" any Documents or other materials, and any data or other information provided by the Client relating to the Services;
"Output Material" any Documents or other materials, and any data or other information provided by Happy Finish or the Retoucher (as appropriate) relating to the Services but excluding any Retouched Input Material;
"Retoucher" any retoucher recommended and/or introduced by Happy Finish to the Client;
"Retoucher Charges" the charges charged by the Retoucher to the Client for the Retoucher's Services as set out in the Estimate as amended from time to time by agreement between the Client and the Retoucher and/or Happy Finish and/or as otherwise agreed between the Retoucher and the Client;
"Retouched Input Material" the final output of any Input Material retouched as part of the Retoucher Services but excluding any layered files;
"Retoucher Services" the services to be provided by the Retoucher for the Client as may be more particularly referred to in the Estimate as amended from time to time by agreement between the Client and the Retoucher and/or Happy Finish; and
"Services" the Happy Finish Services and/or the Retoucher Services as the context requires.
1.2 The headings in these Conditions are for convenience only and shall not affect their
interpretation."Client" the person named on the Estimate for whom Happy Finish has agreed to provide the Services in accordance with these Conditions (including where requests are made through an intermediary acting on behalf of the Client).
If no formal estimate is created or no client is specifically named on the formal estimate then the client is defined as the person without whom Happy Finish would have been unlikely to have been commissioned for the job and with whom Happy Finish has an existing client relationship;
"Conditions" the standard terms and conditions for the supply of the Services set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Happy Finish and the Client as set out in the Contract;
"Contract" the contract for the provision of the Services including the Estimate and these Conditions;
"Deliverables" Retouched Input Material and any other Output Material to be delivered to, or to the order of, the Client;
"Document" includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data and any photographic film, prints, negatives, transparencies, image files, laptops, hard drives and flash drives;
"Estimate" Happy Finish's and the Retoucher's estimate for the Services;
"Force Majeure" any cause beyond Happy Finish's reasonable control including, without limitation, any act of God, war, terrorism, civil disturbance, requisitioning, governmental or parliamentary restrictions, prohibitions or enactments of any kind, import or export regulations, strike lock-out or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining workmen or materials, breakdown of machinery, fire, accident, adverse weather or failure of couriers to deliver on time;
"Happy Finish" Happy Finish Limited, company registration number 05144546, with its principal place of business at Unit 36 Cremer Business Centre, 37 Cremer Street, London E2 8HD;
"Happy Finish Commission" the charges charged by Happy Finish to the Client for Happy Finish's Services as set out in the Estimate as amended from time to time by agreement between the Client and Happy Finish and/or as otherwise agreed between Happy Finish and the Client;
"Happy Finish Services" the services to be provided by Happy Finish for the Client being the recommendation and/or introduction of a Retoucher to the Client as may be more particularly referred to in the Estimate;
"Input Material" any Documents or other materials, and any data or other information provided by the Client relating to the Services;
"Output Material" any Documents or other materials, and any data or other information provided by Happy Finish or the Retoucher (as appropriate) relating to the Services but excluding any Retouched Input Material;
"Retoucher" any retoucher recommended and/or introduced by Happy Finish to the Client;
"Retoucher Charges" the charges charged by the Retoucher to the Client for the Retoucher's Services as set out in the Estimate as amended from time to time by agreement between the Client and the Retoucher and/or Happy Finish and/or as otherwise agreed between the Retoucher and the Client;
"Retouched Input Material" the final output of any Input Material retouched as part of the Retoucher Services but excluding any layered files;
"Retoucher Services" the services to be provided by the Retoucher for the Client as may be more particularly referred to in the Estimate as amended from time to time by agreement between the Client and the Retoucher and/or Happy Finish; and
"Services" the Happy Finish Services and/or the Retoucher Services as the context requires.
1.3 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2 Basis of Contract
2.1 Happy Finish shall provide the Happy Finish Services, the Retoucher shall provide the Retoucher Services and the Client shall purchase the Services in accordance with any Estimate accepted by the Client verbally or in writing, subject always to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any Estimate is accepted or purported to be accepted or any order is made or purported to be made by the Client.
2.2 These Conditions (together with the terms, if any, set out in the Estimate) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except as agreed in writing between Happy Finish and the Client. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
2.3 Happy Finish's employees, agents, contractors and Retouchers are not authorised to make any representations concerning the Happy Finish Services unless confirmed in writing by Happy Finish. In entering into the Contract, the Client acknowledges that it does not rely on and waives any claims for breach of any representations which are not so confirmed.
2.4 Acceptance of these Conditions shall (without limitation) be deemed upon the earlier of:
2.4.1 Acceptance of any Estimate by or on behalf of the Client (whether verbally or in writing);
2.4.2 Provision of a purchase order to Happy Finish and/or a Retoucher by or on behalf of the Client (whether verbally or in writing); and
2.4.3 Engagement of a Retoucher by the Client (and/or any of its affiliates).
3 Supply of the Happy Finish Services
3.1 Happy Finish shall provide the Happy Finish Services to the Client subject to these Conditions. Any changes or additions to the Happy Finish Services or these Conditions must be agreed in writing by Happy Finish and the Client.
3.2 The Happy Finish Services are limited to recommending and/or introducing a Retoucher to the Client. The Retoucher Services are subject to separate contract and agreement between the Client and the Retoucher and are not the responsibility of Happy Finish.
3.3 Happy Finish shall use its reasonable endeavours to ensure the suitability of any Retoucher recommended and/or introduced to the Client but Happy Finish makes no warranty or representation as to the suitability of any Retoucher and the Client should satisfy itself on all such matters.
3.4 Happy Finish's responsibilities to the Client are to verify references and qualifications and to select Retouchers that it reasonably considers suitable for the Retoucher Services in accordance with the Client's requirements as to skills and experience as notified in writing to Happy Finish. It is the Client's responsibility to supply Happy Finish with sufficient information and to respond honestly and accurately to Happy Finish's questions to enable Happy Finish to select a Retoucher with suitable abilities, qualifications and skills.
3.5 The Client acknowledges and agrees that Happy Finish may provide all information it receives from the Client in relation to its identity, the Retoucher Services it requires and otherwise to any Retoucher or prospective Retoucher it intends to recommend and/or introduce to the Client.
3.6 The Client shall, at its own expense, supply Happy Finish and/or the Retoucher with all necessary Documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable to Happy Finish and the Retoucher to provide the Services in accordance with the Contract. The Client shall ensure the accuracy of all Input Material.
3.7 Happy Finish shall use all reasonable endeavours to provide the Happy Finish Services in accordance with the Estimate and as otherwise agreed between Happy Finish and the Client from time to time, subject to these Conditions, but the Client acknowledges and agrees that time of performance of the Services is not of the essence of the Contract.
3.8 Happy Finish may correct any typographical or other errors or omissions in any brochure, promotional literature, estimate or other document relating to the provision of the Services without any liability to the Client.
3.9 Happy Finish may at any time, without notifying the Client, make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.
4 Retouchers and Retoucher Services
4.1 Retouchers are independent contractors, not employed or sub-contracted by Happy Finish, but solely recommended and/or introduced by Happy Finish to the Client in accordance with these Conditions.
4.2 Retouchers are solely selected and engaged directly by the Client.
4.3 The Retoucher has full and exclusive control over how the Retoucher Services are to be provided and terms of engagement between the Client and the Retoucher are as agreed between the Client and the Retoucher, subject to the Estimate and these Conditions. Happy Finish accepts no liability for the Retoucher Services.
4.4 If the Client (and/or any affiliate of the Client) engages a Retoucher recommended or introduced by Happy Finish (whether or not such Retoucher has provided any Retoucher Services to the Client) other than through Happy Finish, the Client must promptly inform Happy Finish of such engagement and the Retoucher Charges for such engagement. The Client shall keep Happy Finish fully informed as to the Retoucher Charges for such engagement and Happy Finish shall have the right to charge the Happy Finish Commission in relation to such engagement as detailed Condition 5.3. Such Happy Finish Commission may be charged to and payable by the Client and/or the Retoucher. This Condition shall apply to any and all engagements which commence whilst the Retoucher is generally represented by Happy Finish and for twelve (12) months thereafter. This Condition shall survive the termination of the Contract for any reason.
4.5 The Client shall provide Happy Finish with all information requested by Happy Finish promptly upon request for the purpose of Happy Finish carrying out an audit of the Client's compliance with the Contract. If any audit performed under this Clause reveals a breach of the terms of the Contract the Client shall bear all Happy Finish's reasonable costs and expenses of such audit.
4.6 Happy Finish accepts no liability for any loss arising to the Client or otherwise if the Retoucher engaged by the Client is unable, for any reason, to complete the Retoucher Services. Happy Finish will, at the Client's request, use its reasonable endeavours to recommend and/or introduce an alternative Retoucher to carry out and/or finalise the Retoucher Services as appropriate subject to these Conditions. It is at the Client's discretion as to whether to engage any alternative Retoucher and, for the avoidance of any doubt, the cancellation fee referred to in Condition 5.4 will not apply if the Client decides not to proceed with an alternative Retoucher and to cancel the Contract on that basis. A proportion of the original Retoucher's Charges (and associated Happy Finish Commission) may apply for Retoucher Services already carried out.
4.7 For colour adjustment work, including colour matching to product samples, Happy Finish accepts no responsibility for any final third party print reproduction and the Client acknowledges and agrees that printing is subject to the inherent limitations of the final output and file format required, such as (by way of example only) the approximation of CMYK print proofs and image files to RGB image files.
4.8 Delivery of Retouched Input Material will be made in a flattened Tiff or Jpegs in RGB format unless previously agreed as CMYK, and not layered files unless previously agreed in writing by Happy Finish and/or the Retoucher.
5 Charges
5.1 Subject to any special terms agreed in the Estimate, the Client shall pay the Retoucher's Charges and Happy Finish Commission and any additional sums which are agreed between Happy Finish and/or the Retoucher and the Client for the provision of the Services or which, in Happy Finish's or the Retoucher's sole discretion, are required as a result of the Client's instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.
5.2 If an Estimate for the Retoucher Services has been provided by Happy Finish, the Happy Finish Commission for those specific Retoucher Services estimated is included in the Retoucher's Charges and is not in addition.
5.3 Otherwise, if a Retoucher provides any Retoucher Services for the Client (and/or any affiliate of the Client) which are not included in an Estimate (whether as part of the original Retoucher Services or as a separate engagement at the same time or at another time), the Happy Finish Commission is chargeable in addition and may (at Happy Finish's sole discretion) be charged directly to the Client and/or the Retoucher at Happy Finish's standard commission rate from time to time. This Condition shall apply to any and all engagements which commence whilst the Retoucher is generally represented by Happy Finish and for twelve (12) months thereafter. This Condition shall survive the termination of the Contract for any reason.
5.4 Happy Finish reserves the right to charge a cancellation fee (on behalf of itself and the Retoucher) of twenty-five percent (25%) of the Estimate if the Client cancels the Contract after acceptance (as referred in Condition 2.4). Cancellation after commencement of any of the Retoucher Services by the Retoucher may incur the cancellation fee and/or the Retoucher's standard charges for the Retoucher Services carried out, whichever is greater.
5.5 The Retoucher's standard editorial price per image usually includes up to two (2) A4 proofs/images and a limit of the initial brief plus three (3) Client comment rounds unless specifically agreed otherwise between the Client and Happy Finish and/or the Retoucher.
5.6 The Retoucher's standard editorial rate is subject to images being used solely in editorial stories. If any images are used for any other purpose, including without limitation advertising, they will be charged at the full advertising rate. The Retoucher also reserves the right to charge the full advertising rate if a credit is not given to Happy Finish and the Retoucher, in the form approved by Happy Finish, on editorials as well as for subsequently published portfolio and test images.
5.7 The Client shall reimburse Happy Finish and the Retoucher for all reasonable expenses incurred by Happy Finish and the Retoucher in the course of performing the Services for the Client including all reasonable travelling, subsistence and other non-incidental expenses including, without limitation, all delivery expenses, couriers and delivery media costs (such as DVD or FTPs). This applies to both fixed price and non-fixed price Estimates.
5.8 Happy Finish shall be entitled to vary the Happy Finish Commission from time to time upon notice to the Client.
5.9 All Charges estimated to the Client for the provision of the Services are exclusive of any applicable Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
5.10 Unless otherwise agreed between Happy Finish and the Retoucher, Happy Finish will invoice the Client on behalf of itself and the Retoucher. The Retoucher Charges and Happy Finish Commission and any additional sums payable should be paid by the Client (together with any applicable Value Added Tax, and without set off or other deduction) in pounds sterling within thirty (30) days of the date of Happy Finish's invoice.
5.11 The provision of final Retouched Input Material to the Client will be deemed acceptance of satisfactory completion of the Services (whether or not formal acceptance is given by the Client). Where delivery of the Retouched Input Material or progression of the job is delayed by the Client without reasonable cause connected with the Services, Happy Finish reserves the right to invoice the Client (on behalf of itself and the Retoucher) on a pro-rata basis for the proportion of the Services completed at the point of delay.
5.12 All export, import, VAT, sales, use or other taxes, levies, duties, fees, governmental charges, exchange rate losses, bank charges and transfer fees shall be the sole responsibility of the Client, and all payments to Happy Finish and the Retoucher shall be exclusive of such charges and losses. If the Client is required to withhold any tax or governmental charge on such payments or pay any additional fees or expenses or exchange any foreign currency into pounds sterling, then the amount of any such payment shall be automatically increased to offset such charges and losses, so that the net amount paid to and received by Happy Finish and the Retoucher always equals the amount invoiced or otherwise due.
5.13 Happy Finish (on behalf of itself and the Retoucher) may, at the Client's request, invoice a third party (such as an advertising agency, trading vehicle owned by the photographer or photographic agency). However should Happy Finish not receive full payment (for itself and the Retoucher) from the third party billing details supplied by the Client within Happy Finish's credit terms, then Happy Finish (on behalf of itself and the Retoucher) will be entitled to invoice the Client directly for the Services undertaken.
5.14 If full payment is not made by the due date, Happy Finish (on behalf of itself and the Retoucher) shall be entitled, without limiting any other right it may have, to:
5.14.1 charge interest on the outstanding amount (both before and after any judgement) at the rate of one percent (1%) per calendar month (compound interest) from the due date until the outstanding amount is paid in full;
5.14.2 suspend provision of any of the Services (by Happy Finish and/or the Retoucher) without liability to the Client until the outstanding amount is paid in full and any times agreed for the provision of the Services shall be amended accordingly; and/or
5.14.3 terminate the Contract in accordance with Condition 8.2.1 below.
6 Rights in Input Material and Output Material
6.1 The property and any copyright and all other intellectual property rights in:
6.1.1 any Input Material and Retouched Input Material shall belong to the Client;
and
6.1.2 any Output Material (including layered files) shall belong to Happy Finish and the Retoucher.
6.2 Provided that the following shall not apply to any Documents or other materials, data or other information which are required by law to be disclosed or are public knowledge at the time when they are provided by either party, and shall cease to apply if at any future time they become public knowledge though no fault of the other party:
6.2.1 any Input Material and Retouched Input Material, or other information provided by the Client, which is so designated by the Client shall be kept confidential by Happy Finish, save that Happy finish may disclose such information to the Retoucher or any prospective Retoucher for the purposes of the Contract and Happy Finish accepts no responsibility for any breach of confidentiality by the Retoucher which is a matter between the Retoucher and the Client; and
6.2.2 all Output Material (including any layered files), or other information provided by Happy Finish or the Retoucher, which is so designated by Happy Finish or the Retoucher shall be kept confidential by the Client.
6.3 The Client shall be solely responsible for obtaining any clearances, permissions or otherwise in respect of third party copyright works, trade marks, designs or other intellectual property. Neither Happy Finish nor the Retoucher accepts any liability for failure on the part of the Client to do this.
6.4 The Client warrants that any Input Material, and its use by Happy Finish and the Retoucher for the purpose of providing the Services, will not infringe the copyright or any other rights of any third party, and the Client shall indemnify Happy Finish and the Retoucher from and against all and any claims, proceedings, penalties, losses, damages, costs and expenses (including legal expenses) suffered or incurred by Happy Finish and/or the Retoucher arising from any such infringement or alleged infringement.
7 Warranties and Liability
7.1 Happy Finish warrants to the Client that the Happy Finish Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with, and within the times referred to in, the Estimate.
7.2 Neither Happy Finish nor the Retoucher shall have any liability to the Client for any loss, damage, costs, expenses or any other claims for compensation, arising from any Input Material or instruction supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival on non-arrival, or any other fault of the Client.
7.3 The Client shall, at its own expense, retain duplicate copies of all Input Material and insure against its accidental loss or damage by the Client, Happy Finish the Retoucher or otherwise. Neither Happy Finish nor the Retoucher shall have any liability for any such loss or damage, however caused, or for any loss, damage, theft or destruction of Input Material. All Deliverables shall be at the sole risk of the Client from the time of delivery to, or to the order of, the Client and, whilst archiving of finished jobs does routinely take place at Happy Finish, neither Happy Finish nor the Retoucher accepts any responsibility for Deliverables, including electronic retouched files, once delivery has taken place. It is the Client's sole responsibility to ensure that adequate care, provision and insurance of backups of Input Materials and Deliverables are maintained.
7.4 Happy Finish shall not be liable for the Retoucher or any Retoucher Services and the Retoucher shall not be liable for Happy Finish or any Happy Finish Services.
7.5 Except in respect of death or personal injury caused by the negligence of Happy Finish (with regard to Happy Finish's liability) or the Retoucher (with regard to the Retoucher's liability), or their respective employees or agents, or as expressly provided in these Conditions:
7.5.1 Neither Happy Finish nor the Retoucher shall be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or indirect, special or consequential loss, damage, costs, expenses (whether caused by the negligence of Happy Finish (with regard to Happy Finish's liability) or the Retoucher (with regard to the Retoucher's liability), or their respective employees or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client; and
7.5.2 the entire liability of Happy Finish and the Retoucher to the Client and/or any other third party under or in connection with the Contract shall not exceed fifty thousand pounds sterling (£50,000) in aggregate.
7.6 Neither Happy Finish nor the Retoucher shall be liable to the Client, or be deemed to be in breach of the Contract, by reason of any delay in performing, or any failure to perform, any of the Services, if the delay or failure was due to any event of Force Majeure. Should any such event of Force Majeure occur for longer than six (6) weeks Happy Finish (on behalf of itself and the Retoucher) may cancel or suspend the Contract without incurring any liability for any loss or damage thereby occasioned.
7.7 If the Client does not consider that Happy Finish's or the Retoucher's limit of liability as detailed in the Contract (particularly but without limitation Condition 7) will be sufficient to protect its interests, the Client should contact Happy Finish and/or the Retoucher, as appropriate, and Happy Finish or the Retoucher will be pleased to discuss with the Client whether it is able to amend its limits and/or increase its insurance cover accordingly. The Client accepts that Happy Finish and/or the Retoucher shall be entitled to charge the Client, and the Client shall pay, an additional fee for accepting any different limit if Happy Finish or the Retoucher, as appropriate, agrees to do so.
8 Termination
8.1 The Client shall only be entitled to cancel the Contract on prior written notice to Happy finish and in accordance with Condition 5.4.
8.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other, if the other:
8.2.1 fails to pay when due any sums due under these Conditions;
8.2.2 commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within fourteen (14) days after being required by written notice to do so;
8.2.3 (in the case of a company) goes into liquidation, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed; or
8.2.4 (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
8.3 Upon the termination of the Contract for whatever reason, all Charges for the Services carried out up until the date of termination shall become immediately due and payable by the Client to Happy Finish.
9 General
9.1 The Contract is personal to the Client and the Client shall not assign, transfer or subcontract or purport to assign, transfer or sub-contract to any other person any of its rights or obligations under the Contract without the prior written consent of Happy Finish.
9.2 Happy Finish may assign, transfer or sub-contract any of its rights and obligations under the Contract to any other party without the consent of the Client. 9.3 Any notice required or permitted to be given under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
9.4 No failure or delay by Happy Finish in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by Happy Finish of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected. 9.6 Save for the Retouchers who shall have such rights, a person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
9.7 Without prejudice to the generality of Condition 9.6 and subject always to anything to the contrary agreed in writing directly between the Retoucher and the Client, the Retoucher shall be entitled to rely upon the rights, benefits and limitations of liability in the Contract as against the Client and, in particular but without limitation, Conditions 5, 6 and 7.
9.8 English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English Courts.
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