FASHOT STANDARD TERMS OF BUSINESS AND TRADE

1. Definitions and Interpretation
1.1 In these Terms, unless the context otherwise requires, the following expressions have the following meanings:
“Agreement” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Additional Delivery Materials” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Business Day” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Client” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Client Materials” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Confidential Information” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Data Protection Legislation” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Delivery” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Delivery Date” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Delivery Materials” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Fees” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Intellectual Property Rights” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Order” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Packshot Materials” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Services” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
“Packshot” means the agreement between Packshot and the Client for the supply and purchase of the Services incorporating these Terms and the and the Order;
1.2 Unless the context otherwise requires, each reference in these Terms to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a Clause or paragraph is a reference to a Clause of these Terms; and
1.2.3 a “Party” or the “Parties” refer to the parties to the Agreement.
1.3 The headings used in these Terms are for convenience only and shall have no effect upon the interpretation of these Terms.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
1.7 Any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
2. Provision of the Services
2.1 Packshot agrees to provide the Services to the Client subject to these Terms.
2.2 Packshot shall carry out the Services with reasonable care and skill and to a standard commensurate with previous work carried out by Packshot.
2.3 Packshot agrees to act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in the Order.
2.4 Packshot shall use all reasonable endeavours to accommodate any reasonable changes to the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable increase to the Fees that may be due as a result of such changes.
3. Delivery
3.1 Packshot shall use reasonable endeavours to deliver the Delivery Materials to the Client on or before the Delivery Date, but time of delivery of the Delivery Materials is not of the essence of the Agreement. Packshot shall use reasonable endeavours to meet all estimated dates for performance of the Services, but any such dates are approximate only.
3.2 Packshot shall deliver the Delivery Materials in a suitable industry standard format via a suitable medium unless otherwise agreed with the Client in writing.
3.3 Packshot shall deliver the Additional Delivery Materials on the Client’s request at the Client’s expense.
3.4 Packshot shall retain a copy of the Delivery Materials and the Additional Delivery Materials for a period of twelve (12) months from the date of the shoot. After that date the Delivery Materials and Additional Delivery Materials may be deleted from Packshot’s records without liability to the Client.
4. Intellectual Property Rights
4.1 Subject to and in consideration of the payment by the Client of all sums due to Packshot in connection with the Agreement, Packshot shall assign to the Client the ownership of any and all Intellectual Property Rights that may subsist in the Delivery Materials (other than the Packshot Materials).
4.2 For the avoidance of doubt, the assignment referred to in clause 4.1 shall not be effective and any and all Intellectual Property Rights that may subsist in the Delivery Materials shall remain the exclusive property of Packshot until all sums due to Packshot in connection with the Agreement (including the Fees) have been received in full by Packshot in cleared funds.
4.3 Pending receipt of all sums due to Packshot in connection with the Agreement (including the Fees) in full and in cleared funds, Packshot grants to the Client a temporary licence to reproduce and publish the Delivery Materials, subject to the proviso that the licence granted by this subclause shall be automatically revoked if the Client breaches any provision of these Terms (including for the avoidance of doubt if the Client exceeds any credit limit set by Packshot in accordance with clause 6.7).
4.4 The Client acknowledges and agrees that any use of the Delivery Materials is subject to certain third party Intellectual Property Rights (including in particular any applicable model usage rights, which are managed exclusively by the applicable model agencies and which must be agreed between the Client and the applicable model agencies). For the avoidance of doubt, nothing in these Terms shall be construed or interpreted as an assignment, licence or waiver by Packshot of any third party Intellectual Property Rights in the Delivery Materials (including any model usage rights).
4.5 The Client grants to Packshot a perpetual, non-exclusive, transferable, sub- licensable, royalty-free licence to use the Client Materials to the extent necessary for Packshot and/or its suppliers to provide the Services.
4.6 Packshot grants to the Client a perpetual, non-exclusive, transferable, sub- licensable, royalty-free licence to use the Packshot Materials to the extent necessary for the Client and/or its affiliates, employees, contractors or clients to use the Delivery Materials.
4.7 Packshot asserts all moral rights arising out of Chapter IV of the Copyright, Designs and Patents Act 1988 and any broadly equivalent rights it may have in any territory of the world.
5. Client’s Obligations
5.1 The Client shall use all reasonable endeavours to provide all pertinent information and materials to Packshot that are necessary for Packshot’s provision of the Services.
5.2 In the event that Packshot requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services at any time, the Client shall provide the same in a reasonable and timely manner.
5.3 If any consents, licences or other permissions are needed from any third parties such as licensees or similar, unless otherwise agreed in writing, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).
5.4 If the nature of the Services requires that Packshot has access to the Client’s office or any other location, access to which is lawfully controlled by the Client, the Client shall ensure that Packshot has access to the same at the times to be agreed between Packshot and the Client as required.
5.5 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of this clause 5 shall not be the responsibility or fault of Packshot and Packshot shall be permitted to make any reasonable changes to the Delivery Date.
5.6 If the Client wishes to cancel a shoot, it must provide Packshot with notice of cancellation in writing at least 48 hours in advance. If the Client fails to provide such notice of cancellation, it shall remain liable for the Fee in accordance with clauses 6 and 12.
6. Fees, Payment and Credit
6.1 The Fees shall be agreed between Packshot and the Client taking account of the workflows and time spent in connection with the provision of the Services. The Fees shall be reviewed and may be revised by Packshot to take account of any requested or required changes to the workflows and/or the time spent in connection with the provision of the Services.
6.2 Subject to clause 12, the Fees shall be payable: (a) immediately by the Client to Packshot on Delivery of the Materials; or (b) on such other terms as may be agreed between the parties in writing in advance.
6.3 Payment of the Fees shall be made in pound sterling in cleared funds to such bank as Packshot may from time to time nominate, without any set-off, withholding or deduction except as required by law.
6.4 All sums stated in the Agreement are exclusive of any sales, use, VAT, customs, duties and any other duty or taxes, in respect of the Services to be provided by Packshot to Client, which shall (if and to the extent applicable) be payable by the Client at the rate and in the manner from time to time prescribed by law.
6.5 If any sums due in connection with the Agreement remain unpaid for a period in excess of 30 days:
6.5.1 interest shall accrue on any outstanding sums on a daily basis at 5% above the base rate of the Bank of England until payment is made in full of any such outstanding sums;
6.5.2 Packshot may withhold the provision of all Services and the delivery of all Delivery Materials until payment is made in full of any/all outstanding sums; and
6.5.3 the Client shall be precluded from making any use of any Intellectual Property Rights in an Delivery Materials in respect of which the Fees remain outstanding until payment is made in full of any/all outstanding sums.
6.6 Packshot shall be entitled to charge additional reasonable fees in the event:
6.6.1 the Client Materials (or any part thereof) are, in the reasonable opinion of Packshot, in any way defective, in an unsuitable format (or a different format to that which Packshot has requested) or of unsuitable quality for normal processing;
6.6.2 any information supplied by the Client or any third party in connection with the Agreement and the Services are inaccurate or incomplete, or the Client fails to give Packshot a full and accurate indication of the work involved and/or time and resources required;
6.6.3 the Client changes its requirements for the Services;
6.6.4 of exceptional circumstances outside the control of Packshot, including currency fluctuations and changes in third party costs; or
6.6.5 that the Client fails to provide any final instructions or Client approvals in a timely manner.
6.7 Packshot may set and vary credit limits from time to time and withhold all further Services if the Client exceeds such credit limit (Especially but not limited to circumstances where credit insurance is wholly or partially withdrawn).
7. Warranties
7.1 Both Parties warrant that they are fully entitled to enter into and perform the Agreement.
7.2 The Client warrants that:
7.2.1 it shall either own, or have obtained and paid for licences to use the Client Materials; and
7.2.2 it shall not use the Delivery Materials or Additional Delivery Materials in any manner that is illegal, offensive or derogatory.
8. Liability, Indemnity and Insurance
8.1 Packshot’s total liability for any loss or damage caused as a result of Packshot’s negligence or breach of these Terms shall be limited to the amount of Fee paid to Packshot by the Client or to any amount offered by Packshot’s professional indemnity or other relevant insurers relating to the event giving rise to the loss or damage in question, whichever is higher.
8.2 Packshot shall have no liability for any loss or damage resulting from any electronic viruses or bugs or any equipment or software failings.
8.3 Packshot shall have no liability for any loss or damage resulting from any delays or cancellations arising out of a failure of any third party service providers (including any cancellations by any models), except that Packshot shall use reasonable endeavours to source alternative third party service providers (including models) within reasonable timescales.
8.4 Nothing in these Terms shall limit or exclude Packshot’s liability for death or personal injury or any other liability that cannot be excluded or limited by law.
8.5 Packshot shall indemnify the Client against any costs, liability, damages, loss, claims or proceedings arising out of Packshot’s breach of these Terms subject to the limits of clause 8.1. Packshot shall not be liable for any indirect, special, punitive, incidental or consequential loss or damage.
8.6 The Client shall indemnify Packshot against any costs, liability, damages, loss, claims or proceedings arising from any loss or damage resulting from use of the Client Materials and any negligence or breach of these Terms by the Client or its agents or employees.
8.7 Neither Party shall be liable to the other or be deemed to be in breach of these Terms by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
8.8 Each Party will only look to the other Party and not to any director, officer, employee, consultant, freelancer or agent of the other Party for satisfaction of any claim, demand or cause of action for damages, injuries or losses incurred as a result of the other party’s action or inaction.
8.9 The Client shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Terms (including credit insurance). On request, the Client shall supply evidence of the maintenance of the insurance and all of its terms from time to time applicable.
9. Promotion
The Client grants Packshot a perpetual, irrevocable, royalty-free license to exploit the Delivery Materials and Additional Delivery Materials throughout the world on Packshot’s websites, portfolios, show reels, social media platforms and/or through any other medium in any manner for the promotion and publicity of Packshot or its affiliates.
10. Confidentiality
10.1 Each Party undertakes that, except as provided by sub-Clause 10.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement:
10.1.1 keep confidential all Confidential Information;
10.1.2 not disclose any Confidential Information to any other party;
10.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the Agreement;
10.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
10.1.5 ensure that none of its directors, officers, employees, workers, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 10.1.1 to 10.1.4 of these Terms.
10.2 Either Party may:
10.2.1 disclose any Confidential Information to:
a) any sub-contractor or supplier of that Party;
b) any governmental or other authority or regulatory body; or
c) any employee or officer of that Party or of any of the aforementioned persons, parties or bodies,
to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any governmental or other authority or regulatory body or any employee or officer of any such body) procure that such person, party or body signs a confidentiality undertaking on terms no less strict than those contained in this clause 10; and
10.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
10.3 Each party acknowledges that damages alone would not be an adequate remedy for any breach of these Terms. Accordingly, each party shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of these Terms.
10.4 The provisions of Clause 10 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
11. Force Majeure
11.1 No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
11.2 In the event that a Party to the Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of 30 days, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.
12. Cancellation
12.1 The Client may give notice in writing to terminate the Agreement with immediate effect at any time prior to a shoot date, subject to reimbursement of Packshot’s costs incurred or accrued at the date of termination and payment of the Fee (or a proportion of the Fee, as the case may be) as calculated in accordance with clause 12.2.
12.2 In the event that notice of termination of the Agreement is given by the Client:
12.2.1 24 hours, or less than 24 hours, prior to the Delivery Date, the entire Fee (as well as any additional fees due in accordance with clause 6.5) shall be payable by the Client to Packshot; or
12.2.2 more than 24 hours prior to the Delivery Date, a proportion of the Fee which in Packshot’s reasonable opinion reflects the proportion of the Services provided to that date (which may include, in Packshot’s reasonable opinion, Services which have been arranged to be provided up to the Delivery Date which cannot reasonably be cancelled prior to the date of commencement of the Services).
12.3 Packshot may cancel the Agreement (and any other contract which it may have with the Client) with immediate effect at any time by giving notice in writing to the Client if:
12.3.1 the Client commits a material or persistent breach of the Agreement and such breach is not remediable;
12.3.2 the Client commits a material breach of the Contract which is capable of being remedied but such breach is not remedied within 7 days of receiving written notice of such breach;
12.3.3 the Client has failed to pay any amount due under the Agreement on the due date and such amount remains unpaid within 7 days after Packshot has given notification that the payment is overdue;
12.3.4 any consent, licence, insurance or authorisation held by the Client is revoked or modified such that the Client is no longer able to comply with its obligations under the Agreement;
12.3.5 the Client stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
12.3.6 the Client is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Packshot reasonably believes that to be the case;
12.3.7 there is material adverse change in the credit status or other financial circumstances of the Client or if Packshot reasonably believes that to be the case (including an inability on the part of Packshot to obtain trade credit insurance for the credit extended to the Client under the Agreement);
12.3.8 the Client becomes the subject of a company voluntary arrangement under the Insolvency Act 1986 (or seeks advice regarding same);
12.3.9 the Client has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
12.3.10 the Client has a resolution passed for its winding up;
12.3.11 the Client has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
12.3.12 the Client is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 7 days of that procedure being commenced;
12.3.13 the Client has a freezing order made against it;
12.3.14 the Client is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
12.3.15 the Client is subject to any events or circumstances analogous to those described in this clause in any jurisdiction;
12.3.16 the Client takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in this clause including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process; and
12.3.17 there exists or occurs any conduct or circumstance (whether or not created by the Client) which in the reasonable opinion of Packshot may be considered harmful to the reputation of Packshot.
12.4 Packshot may cancel the Agreement without cause and without liability to the Client at any time by giving not less than 30 days’ notice to the Client.
12.5 On cancellation of the Agreement, for any reason, the Client shall immediately pay to Packshot all of Packshot’s outstanding unpaid invoices and interest, and in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt.
12.6 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
13. Data Protection
13.1 The Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
13.2 The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Packshot is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
13.3 Without prejudice to the generality of clause 13.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Agreement.
13.4 Without prejudice to the generality of clause 13.1, Packshot shall, in relation to any Personal Data processed in connection with the performance by Packshot of its obligations under the Agreement:
13.4.1 process that Personal Data only on the written instructions of the Client unless Packshot is required under other applicable laws to process such personal data, and shall inform the Client of such legal requirement prior to processing such personal data;
13.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
13.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
13.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
i) the Client or Packshot has provided appropriate safeguards in relation to the transfer;
ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies; and
iii) Packshot complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred;
13.4.5 comply with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
13.4.6 assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
13.4.7 notify the Client without undue delay on becoming aware of a Personal Data breach;
13.4.8 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by other applicable law to store the Personal Data; and
13.4.9 maintain complete and accurate records and information to demonstrate its compliance with this clause 13.
14 No Waiver
No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
15 Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
16 Set-Off
Neither Party shall be entitled to set-off any sums in any manner from payments due nor any sums received in respect of any claim under the Agreement or any other agreement at any time.
17 Relationship of the Parties
Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
18 Third Party Rights
18.1 No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.
18.2 The Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
19 Notices
19.1 All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
19.2 Notices shall be deemed to have been duly given:
19.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
19.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
19.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
19.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
19.3 In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
20 Entire Agreement
20.1 The Agreement (including the Terms and the Order) contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
20.2 Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in these Terms, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
21 Counterparts
The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
22 Severance
In the event that one or more of the provisions of these Terms and/or of the Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of these Terms and/or the Agreement. The remainder of the Agreement shall be valid and enforceable.
23 Variation
Packshot reserves the right to vary and update these Terms from time to time. The updated Terms shall not apply retrospectively but shall apply to any Agreement entered into after the Terms have been varied or updated. By accepting receipt of the Services and the Delivery Materials after the Terms have been varied or updated, the Client agrees to be bound by the updated Terms. Packshot shall provide the Client with its updated Terms from time to time.
24 Law and Jurisdiction
24.1 The Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
24.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.

FASHOT STANDARD TERMS OF BUSINESS AND TRADE

1. Definitions and Interpretation

1.1 In these Terms, unless the context otherwise requires, the following expressions have the following meanings:

1.2 Unless the context otherwise requires, each reference in these Terms to:

1.3 The headings used in these Terms are for convenience only and shall have no effect upon the interpretation of these Terms.

1.4 Words imparting the singular number shall include the plural and vice versa.

1.5 References to any gender shall include the other gender.

1.6 References to persons shall include corporations.

1.7 Any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.

2. Provision of the Services

2.1 Packshot agrees to provide the Services to the Client subject to these Terms.

2.2 Packshot shall carry out the Services with reasonable care and skill and to a standard commensurate with previous work carried out by Packshot.

2.3 Packshot agrees to act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in the Order.

2.4 Packshot shall use all reasonable endeavours to accommodate any reasonable changes to the Services that may be requested by the Client, subject to the Client’s acceptance of any related reasonable increase to the Fees that may be due as a result of such changes.

3. Delivery

3.2 Packshot shall deliver the Delivery Materials in a suitable industry standard format via a suitable medium unless otherwise agreed with the Client in writing.

3.3 Packshot shall deliver the Additional Delivery Materials on the Client’s request at the Client’s expense.

4. Intellectual Property Rights

4.5 The Client grants to Packshot a perpetual, non-exclusive, transferable, sub- licensable, royalty-free licence to use the Client Materials to the extent necessary for Packshot and/or its suppliers to provide the Services.

4.6 Packshot grants to the Client a perpetual, non-exclusive, transferable, sub- licensable, royalty-free licence to use the Packshot Materials to the extent necessary for the Client and/or its affiliates, employees, contractors or clients to use the Delivery Materials.

4.7 Packshot asserts all moral rights arising out of Chapter IV of the Copyright, Designs and Patents Act 1988 and any broadly equivalent rights it may have in any territory of the world.

5. Client’s Obligations

5.1 The Client shall use all reasonable endeavours to provide all pertinent information and materials to Packshot that are necessary for Packshot’s provision of the Services.

5.2 In the event that Packshot requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services at any time, the Client shall provide the same in a reasonable and timely manner.

5.3 If any consents, licences or other permissions are needed from any third parties such as licensees or similar, unless otherwise agreed in writing, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services (or the relevant part thereof).

5.5 Any delay in the provision of the Services resulting from the Client’s failure or delay in complying with any of the provisions of this clause 5 shall not be the responsibility or fault of Packshot and Packshot shall be permitted to make any reasonable changes to the Delivery Date.

5.6 If the Client wishes to cancel a shoot, it must provide Packshot with notice of cancellation in writing at least 48 hours in advance. If the Client fails to provide such notice of cancellation, it shall remain liable for the Fee in accordance with clauses 6 and 12.

6. Fees, Payment and Credit

6.2 Subject to clause 12, the Fees shall be payable: (a) immediately by the Client to Packshot on Delivery of the Materials; or (b) on such other terms as may be agreed between the parties in writing in advance.

6.3 Payment of the Fees shall be made in pound sterling in cleared funds to such bank as Packshot may from time to time nominate, without any set-off, withholding or deduction except as required by law.

6.5 If any sums due in connection with the Agreement remain unpaid for a period in excess of 30 days:

6.5.1 interest shall accrue on any outstanding sums on a daily basis at 5% above the base rate of the Bank of England until payment is made in full of any such outstanding sums;

6.5.2 Packshot may withhold the provision of all Services and the delivery of all Delivery Materials until payment is made in full of any/all outstanding sums; and

6.5.3 the Client shall be precluded from making any use of any Intellectual Property Rights in an Delivery Materials in respect of which the Fees remain outstanding until payment is made in full of any/all outstanding sums.

6.6 Packshot shall be entitled to charge additional reasonable fees in the event:

6.6.1 the Client Materials (or any part thereof) are, in the reasonable opinion of Packshot, in any way defective, in an unsuitable format (or a different format to that which Packshot has requested) or of unsuitable quality for normal processing;

6.6.2 any information supplied by the Client or any third party in connection with the Agreement and the Services are inaccurate or incomplete, or the Client fails to give Packshot a full and accurate indication of the work involved and/or time and resources required;

6.6.3 the Client changes its requirements for the Services;

6.6.4 of exceptional circumstances outside the control of Packshot, including currency fluctuations and changes in third party costs; or

6.6.5 that the Client fails to provide any final instructions or Client approvals in a timely manner.

6.7 Packshot may set and vary credit limits from time to time and withhold all further Services if the Client exceeds such credit limit (Especially but not limited to circumstances where credit insurance is wholly or partially withdrawn).

7. Warranties

7.1 Both Parties warrant that they are fully entitled to enter into and perform the Agreement.

7.2 The Client warrants that:

7.2.1 it shall either own, or have obtained and paid for licences to use the Client Materials; and

7.2.2 it shall not use the Delivery Materials or Additional Delivery Materials in any manner that is illegal, offensive or derogatory.

8. Liability, Indemnity and Insurance

8.2 Packshot shall have no liability for any loss or damage resulting from any electronic viruses or bugs or any equipment or software failings.

8.4 Nothing in these Terms shall limit or exclude Packshot’s liability for death or personal injury or any other liability that cannot be excluded or limited by law.

8.6 The Client shall indemnify Packshot against any costs, liability, damages, loss, claims or proceedings arising from any loss or damage resulting from use of the Client Materials and any negligence or breach of these Terms by the Client or its agents or employees.

8.7 Neither Party shall be liable to the other or be deemed to be in breach of these Terms by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.

8.8 Each Party will only look to the other Party and not to any director, officer, employee, consultant, freelancer or agent of the other Party for satisfaction of any claim, demand or cause of action for damages, injuries or losses incurred as a result of the other party’s action or inaction.

9. Promotion

10. Confidentiality

10.1 Each Party undertakes that, except as provided by sub-Clause 10.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement:

10.1.1 keep confidential all Confidential Information;

10.1.2 not disclose any Confidential Information to any other party;

10.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the Agreement;

10.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and

10.1.5 ensure that none of its directors, officers, employees, workers, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 10.1.1 to 10.1.4 of these Terms.

10.2 Either Party may:

10.2.1 disclose any Confidential Information to:

a) any sub-contractor or supplier of that Party;

b) any governmental or other authority or regulatory body; or

c) any employee or officer of that Party or of any of the aforementioned persons, parties or bodies,

10.3 Each party acknowledges that damages alone would not be an adequate remedy for any breach of these Terms. Accordingly, each party shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of these Terms.

10.4 The provisions of Clause 10 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.

11. Force Majeure

12. Cancellation

12.2 In the event that notice of termination of the Agreement is given by the Client:

12.2.1 24 hours, or less than 24 hours, prior to the Delivery Date, the entire Fee (as well as any additional fees due in accordance with clause 6.5) shall be payable by the Client to Packshot; or

12.3 Packshot may cancel the Agreement (and any other contract which it may have with the Client) with immediate effect at any time by giving notice in writing to the Client if:

12.3.1 the Client commits a material or persistent breach of the Agreement and such breach is not remediable;

12.3.2 the Client commits a material breach of the Contract which is capable of being remedied but such breach is not remedied within 7 days of receiving written notice of such breach;

12.3.3 the Client has failed to pay any amount due under the Agreement on the due date and such amount remains unpaid within 7 days after Packshot has given notification that the payment is overdue;

12.3.4 any consent, licence, insurance or authorisation held by the Client is revoked or modified such that the Client is no longer able to comply with its obligations under the Agreement;

12.3.5 the Client stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

12.3.6 the Client is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Packshot reasonably believes that to be the case;

12.3.8 the Client becomes the subject of a company voluntary arrangement under the Insolvency Act 1986 (or seeks advice regarding same);

12.3.9 the Client has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;