ART POST TERMS OF BUSINESS 2022
- These standard terms and conditions of business ("the Terms") govern the provision by ART POST Limited (“Art Post”) of certain agreed creative post-production, digital retouching, image manipulation services and/or other creative and technical services ("the Services") to the person, firm or company specified in a written order ("the Client”).
- Each Order (as defined below) agreed between ART POST and the Client from time to time will be subject to these Terms, incorporated into and form part of these Terms. If there is any inconsistency between these Terms and the Order then these Terms shall take precedence to the extent of such inconsistency unless ART POST expressly agreed to a specific change to the Terms.
- “Working Day” shall mean any day between 10am and 7pm when the Bank of England is open for business but excluding the period from 20th December to 3rd January (inclusive), unless otherwise specified by ART POST.
ACCEPTANCE OF ORDERS AND PROVISION OF THE SERVICES
- The Client may request services by phone, email or written request. Together the Client and ART POST will clarify the specific parameters of the Services ART POST will provide to the Client in respect of the Client’s film, negatives, data, digital images and/or other Client materials (“Images”) as well as details of the applicable fees pursuant to clause 3 of these Terms (“Fees”) and the specifications for the resulting deliverable images (“Deliverables”). The Client must inform ART POST of any special requirements the Client may have in connection with the Services, timings and/or the resulting Deliverables, including but not limited to the Client’s required format (electronic and/or physical) for the Deliverable sizing, print finish and/or colour balancing, when submitting the Client’s order.
- ART POST will then issue a written quote to the Client (“Quote”). Once the Quote has been confirmed by the Client (either orally or in writing or by delivery of any Images) the Quote becomes a confirmed and binding Order ("Order") for confirmed Services whether or not they are further confirmed by ART POST.
- All Services are dependent upon the timely delivery to ART POST of the agreed number and format of Images and upon the payment of any agreed deposit or advance payment, pursuant to these Terms.
- ART POST shall not be responsible or liable for any Client mistakes in the Order or Images and/or the Client’s costs or losses (however arising) attributable to such mistake, and in particular in relation to any oral instructions or requests for Services which the Client does not subsequently confirm in writing. ART POST reserves the right to refuse to accept any request for services in ART POST’s absolute discretion.
- Additional Services: Any additional services the Client require ART POST to provide which are not set out in the Order will be subject to ART POST’s further agreement and will be provided at ART POST’s rates and/or amounts set out in the Order (“Additional Services”). ART POST reserves the right not to undertake any such Additional Services until the Fee for the original Services has been paid in full.
- Timetable and Turnaround times: Any timetable and/or turnaround times set out in the Order are not “of the essence” and are projected times only (see also clause 5). Whilst ART POST shall use ART POST’s reasonable endeavours to meet these, ART POST accepts no liability whatsoever for any failure to do which is caused by acts or events beyond ART POST’s reasonable control.
- ART POST reserves the right not to respond to enquiries or not to accept further orders or revised Orders if ART POST is at full capacity, or for any other reason, and ART POST will have no liability in this regard.
FEES & EXPENSES
- The Fees specified in the Order for providing the Services are based upon ART POST’s usual rates combined with ART POST’s assessment of the Client’s requirements. ART POST reserves the rights to change the fee rates at any time prior to confirmation of a Quote. The standard rates are based upon the Services being provided during ART POST’s Working Days. ART POST may, at ART POST’s, discretion agree to provide the Services outside of these hours but if so reserves the right to charge for such Services at a rate of time and a half over ART POST’s usual rates. The Fee payable may also be amended further to these Terms if the Client requires any Additional Services.
- ART POST reserves the right to require a portion of the Fee as a deposit to be paid in advance of the start of Services. This deposit is non-refundable unless the Order is cancelled by ART POST without cause.
- Any expenses incurred by ART POST in providing the Services (including but not limited to couriers, print-outs, scans and overtime) will be additional to the Fee and shall appear in ART POST’s final invoice.
- The Fee and expenses shall be exclusive of VAT or any other applicable taxes of any sort which will be charged to the Client at the prevailing statutory rate in full.
- All Fees and expenses shall be paid by the Client in full within thirty (30) days of the date of ART POST’s invoice for the same, unless the Client and ART POST have agreed payment of a deposit, in advance or shorter payment terms in the Order. If the Client fails to pay any undisputed invoice within the payment terms (and without prejudice to any other right or remedy ART POST may have) ART POST shall be entitled to claim interest on any unpaid element of the Fee at the rate in and in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended). ART POST may also charge the Client any debt collection costs. Time for payment of ART POST’s invoices shall be of the essence of this agreement.
- ART POST may (but shall in no circumstances be obliged to) provide editorial discounts but these will be subject to ART POST having agreed the terms for these with the Client in writing in advance (including, but not limited to, ART POST receiving an appropriate credit for the work undertaken) and confirming these in the Order.
- In general terms the Order is non-cancellable. However, the Client has the following limited cancellation rights provided it cancels the order by notice in writing (which may be email) to ART POST in writing:
- If the Order is cancelled by the Client before Images are delivered to ART POST in any form the Order will be cancelled in full and either (1) any deposit will be refunded to the Client after deduction of £25 administration fee, or (2) where there is no deposit, ART POST may invoice the Client for a £25 administration fee, payable on receipt of invoice.
- If the Order in cancelled after delivery of Images but before ART POST commences Services then ART POST will either (1) where a deposit has been paid, retain any deposit and cancel the remainder of the Order, or (2) where there is no deposit, invoice the Client for an administration fee of 25% of the total Fee, which shall be payable on receipt of invoice.
- In all other situations the deposit is non-refundable and ART POST shall be entitled to invoice the Client for all Fees and expenses with any reduction being entirely at the discretion of the ART POST.
RECEIPT & FORMAT OF IMAGES
- Digital copies of the Images that are to be the subject of the Services must be provided promptly once the final Order has been confirmed and must be provided in the format specified in the Order. ART POST will not accept any liability whatsoever (howsoever arising) for any losses or costs incurred by the Client from submitting images in any unsupported formats.
- Where the Client fails to deliver the Images by the delivery date agreed in the Order this may in turn alter the final delivery of the Deliverables and the ETT set out in clause 5.
PROOFS, ALTERATIONS AND ACCEPTANCE
- Draft versions of Deliverables (“Proofs”) will be submitted to the Client either electronically or via proof print for the Client’s approval and sign-off.
- Unless the Client notifies ART POST in writing within three (3) Working Days of any alterations the Client requires to the Proofs the Client will be deemed to have accepted and signed off the Proofs as final Deliverables. Such alternations must be within the original scope of the Order to fall within the agreed Fees. Use of the Proofs (by publication, broadcast, reproduction etc) by the Client at any stage shall also be deemed acceptance of Proofs and no further alterations will be made within the Order.
- ART POST shall provide the agreed number of “rounds” of alterations provided that, in each case, the Client notifies ART POST within three (3) Working Days of receipt of revised Proofs. Additional rounds of revisions may be ordered as Additional Services and will be subject to additional Fees.
- ART POST will use ART POST’s reasonable endeavours to effect any alterations so notified but reserves the right to charge an additional fee (based upon ART POST’s usual hourly rates) if these alterations in ART POST’s reasonable opinion exceed the scope of the Services set out in the Order and/or are then notified to ART POST more than three (3) Working Days after ART POST has submitted the Proofs to the Client.
- On final acceptance (or deemed acceptance) of the Proofs ART POST shall invoice the Client for all remaining the Fees and any expenses.
TURNAROUND TIME AND DELIVERY
- Delivery of the final Deliverables will be in the format agreed in the Order.
- ART POST will notify the Client by email in advance of transmission of any Proofs or Deliverables to the Client. If the Client does not receive such images within twenty four (24) hours of that email the Client must notify ART POST immediately so that ART POST can arrange alternative delivery, failing which ART POST shall not be liable for any losses or damages incurred by the Client arising from such failure of delivery.
- ART POST shall use reasonable commercial efforts to deliver the Deliverables to the Client within any estimated turnaround time agreed in writing (“ETT”). Any ETT is an estimate only and is based upon receipt by ART POST of any agreed advance deposit and all necessary Images and materials. The Client acknowledges that the ETT may be subject to change, and provision of the Services delayed, where any Images contain errors or omissions of any kind, are incorrectly formatted or incomplete or do not comply with any guidelines given by ART POST. In the absence of agreeing an ETT ART POST’s standard estimated turnaround time is ten (10) Working Days for twelve (12) Images.
- It is the Client’s responsibility to provide and maintain a correct and working email access for the receipt/transmission of any images and any other data as part of the Services, and to ensure the active connection of the Client’s computer systems to the Internet and that such addresses allow transmission and receipt of such Deliverables and data.
- ART POST does not accept any liability whatsoever, howsoever arising, for the Client’s inability to receive, access and/or transmit images and data caused by the inoperability of such email, or the Client’s failure to access or use the internet, or the inability of the Client’s computer systems to connect to the Internet, or for any damage caused to the Client’s computer and/or associated systems from the transmission of any images by ART POST in any agreed format. The Client shall be responsible for maintaining the confidentiality of all passwords for access to internet based services, and ART POST will not accept any liability for lost or stolen passwords, or for any unauthorised access to the Client’s digital data held on any internet-based service
- The Client will become the owner of any physical Deliverables on dispatch of such Deliverables by ART POST. Once the Deliverables have been dispatched to the Client, they will be the Client’s risk and responsibility and ART POST shall not be liable for any damage, loss or destruction of the Deliverables after they have been dispatched to the Client.
- If the Client fails to accept delivery of any physical Deliverables for any reason, or if ART POST is unable to deliver the Deliverables to the Client within the ETT due to any actions attributed to the Client, ART POST may retain and store the Deliverables with a third party until delivery to the Client. The Client will be liable for all related costs including, without limitation, storage expenses. Where ART POST agrees to store any Deliverables on the Client’s behalf, risk in those Deliverables remains exclusively with the Client. Accordingly, ART POST expressly excludes all liability for such Deliverables, and for the avoidance of doubt ART POST shall not be required to take out insurance in respect of those Deliverables.
- In the event that delivery of the Deliverables is to an address outside the United Kingdom, ART POST will not be responsible for any importation/exportation taxes or clearances, sales taxes or any other taxes and charges that may be levied at the delivery destination and the Client are advised to check with the Client’s local customs office whether any such charges will apply.
STORAGE AND ARCHIVING
- Upon delivery of final Deliverables ART POST will not retain or keep archive copies of the Deliverables or Images unless ART POST otherwise agrees in writing on the Order, except that ART POST may retain and use Deliverables and Images in order to promote and/or market ART POST and ART POST’s services.
- ART POST offers no warranties and accept no liability whatsoever (howsoever arising) over the security and integrity of ART POST’s digital archive and/or the safe storage of such images. If the Client requires archiving services ART POST shall be entitled to charge an additional fee for such storage/archiving facility which will be set out on the applicable Order.
- Upon delivery of Deliverables ART POST may destroy any and all copies of the Images in any form (including the Deliverables) and such copies then in ART POST’s possession. It is solely the Client’s responsibility to ensure the Client has back-up copies of the Images and has securely archived the Deliverables, and ART POST accepts no liability whatsoever (howsoever arising) for any losses, costs or damages the Client incur as a result of the Client’s failure to do so.
INTELLECTUAL PROPERTY & MORAL RIGHTS
- The Client hereby grants to ART POST an irrevocable and royalty-free licence to store, copy, use, amend, adapt, process, print, manipulate, edit and/or otherwise change any Images submitted by the Client for the purposes of providing Services and otherwise complying with these Terms.
- The Client warrants and undertake that the Client owns and controls, and has obtained all necessary consents, permissions, waivers and clearances from any party who has or may have ownership or control of, any rights (including without limitation all intellectual property rights, privacy rights, copyrights and moral rights) in and to the Images supplied to ART POST, so that ART POST can perform the Services without infringing the rights of any third party.
- It Is the Client’s sole responsibility to ensure that any Images, data and/or other material provided by the Client to ART POST in connection with the Services, and the Deliverables generated pursuant to the Order, comply with all local, national and international laws (whether consumer, public or civil), regulations and codes. The Client warrants that no materials or data deposited with ART POST contain any material which is defamatory, blasphemous or obscene, or which is otherwise contrary to any applicable laws, regulations or codes of practice.
- The Client hereby agrees to fully indemnify and keep ART POST indemnified against any and all any and all claims, demands, damage, loss, payments, liability and expenses (Including legal fees) of whatsoever nature and howsoever arising as a result of any default by the Client of these Terms and/or the Order including without limitation any misrepresentation, failure, negligence and/or breach.
- To the extent that ART POST owns any copyright or other intellectual property or moral rights in the Deliverables ART POST automatically assigns all such copyright or other rights to the Client in full on payment of the Fees and expenses in cleared funds.
- Where set out in an Order, the Client shall ensure that any use of the Deliverables (whether by the Client or a Client licensee) shall contain a credit materially in the form “Post-production by ART POST” in respect of each and every use of the Deliverables, including without limitation re-runs and whether such use is commercial or otherwise.
- This clause sets out the extent of ART POST’s liability to the Client under these Terms and/or the Order. To the fullest extent permissible by law:
- ART POST’s sole liability and the Client’s sole remedy for the loss, theft, destruction or damage to Images retained by ART POST during the provision of the Services will be limited to the replacement cost of the actual materials comprising the Images;
- ART POST will not be liable for the cost of re-shooting or re-printing the material or Images;
- ART POST will not be liable for any failure by ART POST to perform the Services due to circumstances beyond ART POST’s reasonable control including, any event of “force majeure” (including but not limited to those listed in clause 8(f));
- ART POST’s liability for all claims directly or indirectly connected to any matter, whether in negligence or otherwise, to the Client (including the Client’s affiliates and personnel) in respect of an Order, is limited to a sum equal to the Fees specified in the Order; and this limit shall apply to any and all causes of action against ART POST in respect of or arising from or in any way connected with ART POST’s engagement by the Client under an Order; and
- 5. ART POST shall not be liable to the Client for any other losses whether under these Terms, the Order or otherwise including any loss of business, contracts, profits, anticipated savings, goodwill, or revenue, or for any other direct or indirect or consequential loss whatsoever incurred by the Client and whether caused by ART POST, ART POST’s employees, agents and/or sub-contractors.
- Colour, density, tone and contrast of prints: ART POST maintains all printing equipment at optimum print specification and grey balance. Please note that some colours may not accurately reproduce. ART POST cannot be held responsible for discrepancies for differences between images viewed on screen and prints produced from digital files.
- It is the Client’s responsibility to ensure the Client has and maintains adequate insurance cover for images and/or material of value provided by the Client to ART POST for the provision of the Services and for the Deliverables, both pre-and post-production.
- All liability or warranties implied by law, practice or otherwise are excluded as far as legally possible, provided always that nothing in this Agreement will affect any consumer’s statutory rights.
- ART POST may terminate an Order immediately for any breach by the Client of these Terms and/or that Order or for the Client’s entering into any arrangements or invoking any proceedings in respect of the Client’s insolvency, liquidation, bankruptcy, winding-up, administration or other dissolution. Upon such termination the Client will pay any outstanding element of the Fee attributable to those Services performed by ART POST prior to and at the date of such termination.
- These Terms and/or any Order cannot be varied unless agreed in writing by a director of ART POST.
- No person shall have any right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of these Terms.
- These Terms and any applicable Order represent the entire agreement between ART POST and replace, supersede and cancel all previous ART POST arrangements, understandings or agreements between ART POST either oral or written with respect to the subject matter of these Terms and the applicable Order (save that this clause shall not exclude any liability for fraudulent misrepresentation) .
- These Terms and/or Orders will be governed by the laws of England and Wales. T whose courts shall be the courts of exclusive jurisdiction.
- ART POST shall not be liable for any delay in performing or failure to perform its obligations hereunder to the extent that such delay or failure results from any cause or circumstance beyond its reasonable control, including without limitation any inability of ART POST to secure labour, materials, supplies or transport, scarcity of fuel, power or components, breakdown of machinery, fire, storm, flood, acts of God, internet failure, war, civil disturbance, strikes, lockouts or industrial action (each an “event of force majeure”). If any event of force majeure occurs, the date(s) for performance of ART POST’s affected obligation(s) shall be postponed for as long as is made necessary by the event of force majeure. If any event of force majeure continues for a period of or exceeding 60 days, the Client may cancel the affected order (or the affected part(s) of it) by written notice to ART POST.