Terms & Conditions

Terms and Conditions

1. BASIS OF CONTRACT

1.1 These Terms, together with our privacy policy and our Specification, set out the legal terms on which Viewpoint will provide Services to the Client and will apply to any contract between Viewpoint and the Client for the supply of those Services. Please read these Terms and our privacy policy carefully to ensure a full understanding of their application.

1.2 By sending a Specification and a Quotation to the Client, Viewpoint makes an offer to supply the Services and any Deliverables on these Terms.

1.3 Any such Specification and Quotation given by Viewpoint shall only be valid for acceptance for a period of 30 days from the date they are issued.

1.4 When the Client accepts Viewpoint’s Specification and Quotation on these Terms the Contract shall come into existence. Such acceptance may be delivered in writing, by email or by phone.

1.5 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Viewpoint, which is not set out in the Contract.

1.6 These Terms apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Specification sets out the full description of the Services and any Deliverables, and shall supersede and replace any prior proposal produced by the Client. It is the Client’s responsibility, 

before entry into the Contract, to ensure that the Specification is adequate for its requirements.

 

2. SUPPLY OF SERVICES

2.1 Viewpoint shall supply the Services to the Client in accordance with the Specification in all material respects.

2.2 Viewpoint shall use reasonable endeavours to meet any performance dates set out in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

2.3 Viewpoint shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services, and Viewpoint shall notify the Client in any such event.

2.4 Viewpoint warrants to the Client that the Services will be provided using reasonable care and skill.

 

3. CUSTOMER’S OBLIGATION

3.1 The Client shall:

3.1.1 co-operate with Viewpoint in all matters relating to the Services;

3.1.2 use its reasonable endeavours to respond to Viewpoint to the timescales set out in any agreed schedule

3.1.3 deliver any content and information required by Viewpoint in a timely manner;

3.1.4 provide Viewpoint with such information and materials as Viewpoint may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; 

3.1.5 ensure that Viewpoint is entitled to use for the purposes of the Services any Intellectual Property Rights in any content which is provided by, or specified by, the Client. It shall be the Client’s responsibility to notify Viewpoint if it does not own any content that it requires Viewpoint to use.

3.2 If Viewpoint’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Customer Default): 

3.2.1 Viewpoint shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default. Viewpoint shall be excused any breach of any of its obligations to the extent that it is prevented or delayed by the Client Default;

3.2.2 Viewpoint shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Viewpoint’s failure or delay to perform any of its obligations as a result of a Client Default; and

3.2.3 the Client shall reimburse Viewpoint for any costs or losses sustained or incurred by Viewpoint arising directly or indirectly from the Client Default.

3.3 The Client accepts that:

3.3.1 Viewpoint shall not be obliged to transfer any files to a third party server unless all invoices have been settled in full; 

 

4. CHARGES AND PAYMENT

4.1 The Charges for the Services shall be the fixed fee set out in Viewpoint’s Quotation.

4.2 If Viewpoint is required to carry out work outside the scope of the Specification, Charges shall apply which shall be calculated in accordance with Viewpoint’s standard daily fee rate or any additional costs incurred.

 4.3 Viewpoint shall be entitled to charge the Client for any travel expenses incurred by the individuals whom Viewpoint engages in connection with the Services. Viewpoint shall also charge for any accommodation or subsistence costs incurred, provided the Client is notified of such costs in advance of their being incurred.

4.4 Invoices shall be submitted by Viewpoint as follows:

4.5 The Client shall pay each invoice submitted by Viewpoint Photography within 30 days of the date of the invoice unless any individual agreement has been agreed, in full and in cleared funds to a bank account nominated in writing by Viewpoint. Time for payment shall be of the essence of the Contract.

4.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by Viewpoint to the Client, the Client shall, on receipt of a valid VAT invoice from Viewpoint, pay to Viewpoint such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due 

for the supply of the Services. 

4.7 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Viewpoint may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Viewpoint to the Client.

4.8 Viewpoint reserves the right to charge interest on late payments from the day after the last date for payment within the 30 day period following the date of the invoice, which shall accrue each day at a rate of 4% a year above the Bank of England’s base rate from time to time, but 4% a year for any period when that base rate is below 0%.

 

5. ACCEPTANCE AND CHANGE

5.1 Unless otherwise specifically agreed in writing, the Charges specified by Viewpoint cover delivery of the Services and any Deliverables and up to one round of amends, during which the Client may require Viewpoint to make minor changes, provided that such changes are within the scope of the Specification. If further work is required after that because the Services or Deliverables still do not comply with the Specification then no further Charges shall apply. If further work is required for any other reasons, Viewpoint shall be entitled to charge at its hourly rate. 

5.2 The Client will be asked to approve designs or related design items, scripts, storyboards, images, edits, links or any representation whether partial or total of the finished article in whatever form may be submitted by Viewpoint to the Client for approval. Such approval may be given in writing, by email or phone. Once such approval has been given it shall be final and Viewpoint shall not have further liability for any errors or inaccuracies.

5.3 If the Client wishes to make a change to the Specification, Viewpoint shall notify the client of any changes to the Charges that would arise out of that change. Viewpoint shall not be obliged to make any change, and shall be entitled to continue providing the existing Specification, until such revised Charges and Specification are agreed in writing.

 

6. INTELLECTUAL PROPERTY RIGHTS

6.1 All Intellectual Property Rights in Specification and the Deliverables or arising out of or in connection with the Services shall be the property of Viewpoint.

6.2 Unless otherwise agreed in writing, the Client shall have no ownership in, and shall not be entitled to use, any Intellectual Property Rights. 

6.3 Once the Client has settled all invoices raised by Viewpoint in respect of the Services, Viewpoint shall grant to the Client a perpetual, royalty-free license to use all Intellectual Property Rights arising out of the Services or subsisting in any Deliverables. 

6.4 The Client shall notify Viewpoint in writing at the outset of their instruction of the territory and period for which they require the license, as mentioned in clause 6.3 above, to apply. The Quotation shall then state whether the license is to be of worldwide or European application together with any usage restrictions. This information will also be noted on the final invoice. The Quotation and final invoice will also state whether usage fees apply for an agreed period of time for both worldwide and European licenses for images and film. 

6.5 The Client acknowledges that its use of any third party’s Intellectual Property Rights is conditional on Viewpoint obtaining a written license from the relevant licensor on such terms as will entitle Viewpoint to license such rights to the Client. Where Viewpoint uses third parties to provide elements of Viewpoint’s Service, Viewpoint will notify the Client of the name of the third party and the service that they will provide and the third party services will be stated on the invoice.

6.6 If the Client requires Viewpoint to use certain specific materials or content, the Client shall indemnify Viewpoint against any cost, claim, liability or damages (including professional fees) incurred by Viewpoint arising out of any allegation by a third party that Viewpoint’s use of such materials or content infringes that third party’s Intellectual Property Rights.

6.7 Unless agreed otherwise in the Specification, Viewpoint may use any Intellectual Property Rights it has developed for the Client for its own promotional purposes.

 

7. CONFIDENTIALITY

7.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.

 

8. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY 

DRAWN TO THIS CLAUSE

8.1 Nothing in these Terms shall limit or exclude Viewpoint’s liability for death or personal injury caused by its negligence, or for the negligence of its employees, agents or subcontractors, fraud or fraudulent misrepresentation, or for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession), or for anything else which cannot be 

limited or excluded by law.

8.2 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.3 Subject to clause 8.1:

8.3.1 Viewpoint shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

8.3.2 Viewpoint’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Charges for the Services and Deliverables passing under this Contract.

8.4 This clause 8 shall survive termination of the Contract.

9. TERMINATION

9.1 Viewpoint may terminate the Contract by giving the Client notice, such notice to take effect:

9.1.1 30 days after service in the case of Clients who receive an ongoing 

service from Viewpoint and whose invoices are marked “retainer”;

9.1.2 7 days after notice in all other cases, in which case the Client may choose 

to either:

(a) receive a refund of all the Charges (and it will not receive a licence of any Intellectual Property Rights produced by Viewpoint up to termination); OR

(b) be invoiced for the Charges pro rata to the amount of work performed up to termination, and to receive a licence of all Intellectual Property Rights produced by Viewpoint up to termination on the terms of clause 6.3 including the right to complete the works itself or via a third party.

9.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if: 

9.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

9.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the 

Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

9.2.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

9.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party 

(being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

9.2.5 the other party (being an individual) is the subject of a bankruptcy petition or order;

9.2.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

9.2.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

9.2.8 the holder of a qualifying floating charge over the assets of that other 

party (being a company) has become entitled to appoint or has appointed an administrative receiver;

9.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

9.2.10 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2.2 to clause 9.2.9 (inclusive); 9.2.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;

9.2.12 the other party’s financial position deteriorates to such an extent that in Viewpoint’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

9.2.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

9.3 Without limiting its other rights or remedies, Viewpoint may suspend provision of the Services under the Contract or any other contract between the Client and Viewpoint Photography if the Client fails to pay any amount due under this Contract on the due date for payment or if the Client becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.13, or Viewpoint reasonably believes that the Client is about to become subject to any of them.

9.4 Without limiting its other rights or remedies, Viewpoint may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.

10. CONSEQUENCES OF TERMINATION

10.1 On termination of the Contract for any reason:

10.1.1 the Client shall immediately pay to Viewpoint all of Viewpoint’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Viewpoint shall submit an invoice, which shall be payable by the Client immediately on receipt;

10.1.2 the Client shall return all Deliverables, which have not been fully paid for. If the Client fails to do so, then Viewpoint may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

10.1.3 the accrued rights, remedies, obligations and liabilities of the parties at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

10.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.

10.1.5 Viewpoint will retain all images and film created and produced for the Client for a period of 12 months following the termination of this agreement in accordance with clause 9. All images and films that are retained will be used for the purposes of Viewpoint’s portfolio and marketing services only.

 

11. DATA PROTECTION

11.1 To enable Viewpoint to discharge the services agreed under this engagement, and for other related purposes including updating and enhancing client records, analysis for management purposes, crime prevention and legal and regulatory compliance, Viewpoint may obtain, use, process and disclose personal data about the Client in accordance with Viewpoint’s privacy policy. The Privacy policy is included with these terms and conditions and available to view on the website http://www.viewpointstudios.co.uk. Viewpoint will only use the client’s personal data in accordance with Viewpoint’s privacy policy.

11.2 The Client acknowledges that Viewpoint will act in accordance with 

the privacy policy that has been supplied to the Client by Viewpoint with these 

Terms.

 

12. GENERAL

12.1 Assignment and other dealings. Viewpoint may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent. The Client shall not, without the prior written consent of Viewpoint, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

12.2 Force Majeure. Viewpoint shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Viewpoint including strikes, lock-outs or other industrial disputes (whether involving the workforce of Viewpoint or any other party), failure of a utility service or transport 

network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

12.3 Notices.

12.3.1 Any notice or other communication given to a party in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier and email.

12.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the 

Contract.

12.5 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way. 

12.7 Variation. Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Viewpoint. 

12.8 Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

 

13. INTERPRETATION

13.1 Definitions. In these Terms, the following definitions apply:

“Charges”; the charges payable by the Client for the supply of the Services in accordance with clause 4.

“Contract”; the contract between Viewpoint and the Client for the supply of Services in accordance with these Terms.

“Client”; the person or firm who purchases Services from Viewpoint.

“Deliverables”; the deliverables referred to in the Specification to be produced by Viewpoint for the Client.

“Viewpoint”; Viewpoint Photography Limited, a company registered in England and Wales with company number 4159633. Trading as Viewpoint Studios.

“Intellectual Property Rights”; patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for 

and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Quotation”; the written estimate provided by Viewpoint to the Client setting out the fixed fee for the required Services set out in the Specification.

“Services”; the services, including the Deliverables, supplied by to the Client as set out in the Specification.

“Specification”; the description or specification of the Services provided in writing by Viewpoint to the Client.

“Terms”; these terms and conditions as amended from time to time in accordance with clause 11.8.

13.2 Construction. In these Terms, the following rules apply:

13.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

13.2.2 a reference to a party includes its successors or permitted assigns; 

13.2.3 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.