1. INTERPRETATION

The following definitions and rules of interpretation apply in these Conditions.

1.1 Definitions

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment)

Conditions: these terms and conditions as amended from time to time in accordance with clause 10.5.

Contract: the contract between PCA and the Customer for the supply of Services in accordance with these Conditions.

Credit: has the meaning set out in clause 6.4.

Customer: the person or firm who purchases Services from PCA.

Customer Default: has the meaning set out in clause 4.2.

Deliverables: the deliverables produced by PCA for the Customer as agreed between PCA and the Customer, including the Photographs.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, 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.

Order: the Customer’s order for Services as agreed in writing or verbally between the Customer and PCA.

Photographs: the photographs produced by PCA for the Customer as agreed between PCA and the Customer.

Services: the photography, filming, retouching, scanning, printing or other related services, including the Deliverables, supplied by PCA to the Customer as set out in the Specification.

PCA: Prudence Cuming Associates Limited, registered in England and Wales with company number 00908367, the Supplier.

PCA Materials: has the meaning set out in clause 4.1(g).

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2 PCA’s acceptance of an Order will take place when it is accepted by PCA by email or by a phone call, at which point a contract will come into existence between the Customer and PCA.

2.3 Any samples, drawings, descriptive matter or advertising issued by PCA, and any descriptions or illustrations contained in PCA’s catalogues, brochures or on its website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

3. SUPPLY OF SERVICES

3.1 PCA shall supply the Services to the Customer in accordance with the Order in all material respects.

3.2 PCA shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 PCA warrants to the Customer that the Services will be provided using reasonable care and skill.

4. CUSTOMER'S OBLIGATIONS

4.1 The Customer shall:

(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with PCA in all matters relating to the Services;
(c) provide PCA, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by PCA;
(d) provide PCA with such information and materials as PCA may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) comply with all applicable laws, including health and safety laws; and
(g) keep all materials, equipment, documents and other property of PCA (“PCA Materials”) at the Customer's premises in safe custody at its own risk, maintain the PCA Materials in good condition until returned to PCA, and not dispose of or use the PCA Materials other than in accordance with PCA’s written instructions or authorisation.

4.2 If PCA’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
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(a) without limiting or affecting any other right or remedy available to it, PCA shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays PCA’s performance of any of its obligations;
(b) PCA shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from PCA’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse PCA on written demand for any costs or losses sustained or incurred by PCA arising directly or indirectly from the Customer Default.

4.3 The risk of loss, theft, damage or destruction of any artworks, jewellery or other property belonging to the Customer or its clients (“Customer Materials”) that are provided to PCA in connection with the Services shall remain with the Customer at all times during the term of the Contract.  The Customer shall take out and maintain in force during the term of the Contract an insurance policy in respect of the Customer Materials. Except for loss or damage that is caused by the negligence of its employees or agents in connection with the provision of the Services and in respect of which the Customer cannot make a claim under its insurance policy, PCA shall not be liable for any loss or damage caused to the Customer Materials during the term of the Contract.

5. CHARGES AND PAYMENT

5.1 PCA will provide the Customer with a quotation for the Charges when placing an Order.  Any quotation is an estimate only and PCA reserves the right to vary the Charges from any amounts given on the quotation.
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5.2 The Customer shall pay each invoice submitted by PCA:(a) within thirty (30) days of the date of the invoice or within such other time period as may be agreed in writing by PCA; and(b) in full and in cleared funds to a bank account nominated in writing by PCA, and time for payment shall be of the essence of the Contract.
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5.3 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by PCA to the Customer, the Customer shall, on receipt of a valid VAT invoice from PCA, pay to PCA 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.
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5.4 If the Customer fails to make a payment due to PCA under the Contract by the due date, then, without limiting PCA’s remedies under clause 8, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause
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5.4 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.5.5 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6. INTELLECTUAL PROPERTY RIGHTS

6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (including in the Deliverables but excluding in any materials provided by the Customer) shall be owned by PCA.
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6.2 PCA grants to the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, non-transferable, royalty-free, perpetual licence to use, reproduce, publish and distribute the Deliverables in all forms of media whether now known or devised in the future, including without limitation print and digital, for the purpose of receiving and using the Services and the Deliverables in its business.
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6.3 PCA, being the sole author of the Deliverables, asserts PCA’s moral right under Chapter 4 of the Copyright, Designs and Patents Act 1988 to be identified as the author of the Deliverables.
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6.4 The Customer shall accord PCA credit on any use or reproduction of the Photographs in the following form © [date of creation of photograph] Prudence Cuming Associates (“Credit”), such Credit to be placed as close as possible to the parameters of each Photograph.
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6.5 The Customer shall secure all third-party permissions and clearances as are necessary to enable the Customer to exercise the rights granted to the Customer under the Contract.
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6.6 The Customer shall not adapt or alter the Deliverables without PCA’s prior written consent.
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6.7 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
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6.8 The Customer grants PCA a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to PCA for the term of the Contract for the purpose of providing the Services to the Customer.

7. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

7.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c)  breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).7.2 Subject to clause

7.1 PCA’s total liability to the Customer shall not exceed the Order amount. PCA’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.

7.3 This clause 7.3 sets out specific heads of excluded loss:

(a) Subject to clause 7.1, the types of loss listed in clause 7.3
(b) are wholly excluded by the parties.b) The following types of loss are wholly excluded:
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(I) Loss of profits
(II) Loss of sales or business.
(III) Loss of agreements or contracts.
(IV) Loss of anticipated savings.
(V) Loss of use or corruption of software, data or information.
(VI) Loss of or damage to goodwill.
(VII) Indirect or consequential loss.
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7.4 Unless the Customer notifies PCA that it intends to make a claim in respect of an event within the notice period, PCA shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire twelve (12) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

7.5 This clause 7 shall survive termination of the Contract.

8. TERMINATION

8.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one (1) months' written notice.

8.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(b) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(c)   the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

8.3 Without affecting any other right or remedy available to it, PCA may terminate the Contract with immediate effect by giving written notice to the Customer if
(a) The Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within five (5) Business Days after receipt of notice in writing to do so; or
(b) the Customer fails to pay any amount due under the Contract on the due date for payment.

8.4 Without affecting any other right or remedy available to it, PCA may suspend the supply of Services under the Contract or any other contract between the Customer and PCA if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 8.2(a) to clause 8.2(c), or PCA reasonably believes that the Customer is about to become subject to any of them.

9. CONSEQUENCES OF TERMINATION

9.1 On termination of the Contract:
(a) the Customer shall immediately pay to PCA all of PCA’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, PCA shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) the Customer shall return all of the PCA Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then PCA may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

9.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

9.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

10. GENERAL

10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

10.2 Assignment and other dealings.
‍(a) PCA may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of PCA.

10.3 Confidentiality.
‍(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(b).
(b) Each party may disclose the other party's confidential information:
(I) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10.3; and
(II) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

10.4 Entire agreement.
‍(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.

10.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

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

10.7 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.

10.8 Notices.
‍(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case). Any notice shall be deemed to have been received:
(I) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(II) if sent by pre-paid first-class post or other next working day delivery service, the second Business Day after posting.
(b) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

10.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

10.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.