TERMS OF SERVICE

This is the agreement (the “Agreement”) pursuant to which we (Picfair Limited, incorporated and registered in England and Wales under company number 08474521 and whose registered office is at 2 Underwood Row, London N1 7LQ (the “ Supplier”)) agree to provide use of our web-based photography platform to you (our “ Customer”). Each of the Supplier and the Customer, a “party” and together the “ parties”.


If you wish to use the Services (as defined below), you must click to acknowledge acceptance of this Agreement on the Website (as defined below). This Agreement will then govern the relationship between the Supplier and the Customer and the provision of the Services from the date on which you clicked to accept the terms of this Agreement (the “Commencement Date”).


If the Customer does not accept the terms set out in this Agreement, the Customer shall have no right to use the Services.


    AGREED TERMS


  1. 1

    Interpretation

  2. 1.1

    The definitions and rules of interpretation in this clause apply in this Agreement.

  3. Applicable Laws: (i) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom; and (ii) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject.

    Applicable Data Protection Laws: (i) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

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

    Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Applicable Data Protection Laws.

    Customer Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Customer.

    Customer Data: the data inputted by the Customer or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services, including, but not limited to, all images uploaded via the Software and all metadata associated with such images.

    Documentation: the documentation which sets out the description of the Services and the user instructions for the Services made available to the Customer on the Website.

    EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

    Initial Subscription Term: the initial term of a Plus Subscription, being either one calendar month or one calendar year from the Commencement Date, depending on the length of Plus Subscription chosen by the Customer on the Website.

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

    Normal Business Hours: 10.00 am to 6.00 pm local UK time, each Business Day.

    Plus Subscription: if applicable, the subscription purchased by the Customer pursuant to clause 8 which entitles the Customer to access and use the Services in accordance with this Agreement on the basis of the features set out in the Documentation.

    Purpose: the purposes for which the Customer Personal Data are processed, as set out in clause 5.6.1.

    Renewal Period: the period described in clause 13.2.

    Services: the subscription services provided by the Supplier to the Customer: (i) for access to the Software; and (ii) the provision of the Support Services (if applicable), each under thisAgreement and as more particularly described in the Documentation.

    Software: the online photography ecommerce software platform provided by the Supplier as part of the Services via the Website.

    Standard Subscription: if applicable, the free subscription chosen by the Customer which entitles them to access and use the Services in accordance with this Agreement on the basis of the features set out in the Documentation.

    Subscription Fee: the subscription fee payable by the Customer to the Supplier for a Plus Subscription as set out in the Documentation.

    Subscription Term: the period from the Commencement Date until the termination of this Agreement in accordance with clause 13.3.

    Support Services: the support services provided by the Supplier as part of Plus Subscription in respect of the Software during Normal Business Hours, in accordance with the Support Services Policy.

    Support Services Policy: the Supplier's policy for providing support in relation to the Services as set out on the Website.

    UK GDPR: has the meaning given to it in the Data Protection Act 2018.

    User Subscription: either a Standard Subscription or a Plus Subscription.

    Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

    Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term “ Vulnerabilities” shall be construed accordingly.

    Website: picfair.com or such other URL from which the Software may be accessed from time to time (including, but not limited to, subdomains of picfair.com).

  4. 1.2

    Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

  5. 1.3

    A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

  6. 1.4

    A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

  7. 1.5

    Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

  8. 1.6

    A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

  9. 1.7

    A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

  10. 1.8

    A reference to writing includes e-mail.

  11. 1.9

    References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.


  12. 2 USER SUBSCRIPTION

  13. 2.1

    Subject to the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Customer to use the Services and the Documentation during the Subscription Term and solely for the Customer's internal business operations.

  14. 2.2

    The Customer undertakes that they shall keep a secure password for their use of the Services and Documentation and keep their password confidential.

  15. 2.3

    The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

    1. 2.3.1

      is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

    2. 2.3.2

      facilitates illegal activity;

    3. 2.3.3

      depicts sexually explicit images;

    4. 2.3.4

      promotes unlawful violence;

    5. 2.3.5

      is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

    6. 2.3.6

      is otherwise illegal or causes damage or injury to any person or property;

    and Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

  16. 2.4

    The Customer shall not:

    1. 2.4.1

      except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

      1. 2.4.1.1

        attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

      2. 2.4.1.2

        attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

    2. 2.4.2

      access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

    3. 2.4.3

      use the Services and/or Documentation to provide services to third parties; or

    4. 2.4.4

      license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or

    5. 2.4.5

      attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or

    6. 2.4.6

      introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.

  17. 2.5

    The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Supplier.

  18. 2.6

    The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any other third party unless expressly agreed in writing between the parties.


  19. 3 SERVICES

  20. 3.1

    The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.

  21. 3.2

    The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for unscheduled maintenance performed during Normal Business Hours.

  22. 3.3

    The Supplier will, as part of the Services where the Customer has subscribed for a Plus Subscription and in consideration of payment of the Subscription Fee, provide the Customer with the Support Services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Support Services are provided.


  23. 4 THIRD PARTY PROVIDERS

    The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Supplier. Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.


    5 CUSTOMER DATA

  24. 5.1

    The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

  25. 5.2

    Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Applicable Data Protection Laws.

  26. 5.3

    The parties acknowledge that the Supplier shall process the Customer Personal Data as a processor on behalf of the Customer.

  27. 5.4

    Without prejudice to the generality of clause 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of this Agreement.

  28. 5.5

    In relation to the Customer Personal Data Schedule 1 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

  29. 5.6

    Without prejudice to the generality of clause 5.2, the Supplier shall, in relation to Customer Personal Data:

    1. 5.6.1

      process that Customer Personal Data only on the documented written instructions of the Customer, which shall be to process the Customer Personal Data for the purposes set out in Schedule 1 (the “Purpose”) unless the Supplier is required by Applicable Laws to otherwise process that Customer Personal Data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer on important ground of public interest;

    2. 5.6.2

      implement technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, having regard to the state of technological development and the cost of implementing any such measures;

    3. 5.6.3

      ensure that any personnel engaged and authorised by the Supplier to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

    4. 5.6.4

      assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

    5. 5.6.5

      notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

    6. 5.6.6

      at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 5.6.6 Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and;

    7. 5.6.7

      maintain records to demonstrate its compliance with this clause 5 and allow for reasonable audits of such records by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice, provided that the Customer may only carry any such audit once per calendar year during the Subscription Term.

  30. 5.7

    The Customer hereby provides its prior, general authorisation for the Supplier to:

    1. 5.7.1

      appoint processors to process the Customer Personal Data, provided that the Supplier:

      1. 5.7.1.1

        shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 5;

      2. 5.7.1.2

        shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and

      3. 5.7.1.3

        shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to the Supplier's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection; and

    2. 5.7.2

      transfer Customer Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).

    6 SUPPLIER'S OBLIGATIONS

  31. 6.1

    The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

  32. 6.2

    The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.

  33. 6.3 The Supplier:

    1. 6.3.1

      has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement;

    2. 6.3.2

      does not warrant that:

      1. 6.3.2.1

        the Customer's use of the Services will be uninterrupted or error-free; or

      2. 6.3.2.2

        that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or

      3. 6.3.2.3

        the Software or the Services will be free from Vulnerabilities or Viruses; and

    3. 6.3.3

      is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

  34. 6.4

    This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.


  35. 7 CUSTOMER'S OBLIGATIONS

    7.1 The Customer shall:

    1. 7.1.1

      provide the Supplier with:

      1. 7.1.1.1

        all necessary co-operation in relation to this Agreement; and

      2. 7.1.1.2

        all necessary access to such information as may be required by the Supplier,

      3. in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

    2. 7.1.2

      without affecting their other obligations under this Agreement, comply with all applicable laws and regulations with respect to their activities under this Agreement;

    3. 7.1.3

      carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

    4. 7.1.4

      use the Services and the Documentation solely in accordance with the terms and conditions of this Agreement;

    5. 7.1.5

      obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

    6. 7.1.6

      ensure that their network and systems comply with the relevant specifications provided by the Supplier from time to time; and

    7. 7.1.7

      be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing their network connections and telecommunications links from their systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

  36. 7.2

    The Customer hereby acknowledges that this Agreement does not govern the terms on which they license to the Supplier any images uploaded to the Website and that such terms are set out in the Picfair Image ContributorAgreements.

  37. 8 FEES

  38. 8.1

    For the avoidance of doubt, no Subscription Fee is chargeable to the Customer for a Standard Subscription but the Customer shall pay the Subscription Fee to the Supplier for a Plus Subscription in accordance with this clause 8.

  39. 8.2

    Where the Customer has subscribed for a Plus Subscription, they shall, on the Commencement Date, provide to the Supplier valid, up-to-date and complete credit or debit card details and the Customer hereby authorises the Supplier to bill such credit or debit card:

    1. 8.2.1

      on the Commencement Date for the Subscription Fee payable in respect of the Initial Subscription Term; and

    2. 8.2.2

      subject to clause 13.1, on each mensiversary of the Commencement Date (where the Initial Subscription Term is a month) or anniversary of the Commencement Date (where the Initial Subscription Term is a year) for the Subscription Fee payable in respect of the next Renewal Period.

  40. 8.3

    If the Supplier has not received payment of any portion of the Subscription Fee within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

    1. 8.3.1

      the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the sums due remain unpaid; and

    2. 8.3.2

      may, at its sole discretion, charge late payment interest which, if charged, shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

  41. 8.4

    All amounts and fees stated or referred to in thisAgreement:

    1. 8.4.1

      shall be payable in pounds sterling;

    2. 8.4.2

      are, subject to clause 12.3.2, non-cancellable and non-refundable;

    3. 8.4.3

      are exclusive of value added tax, which shall be added at the appropriate rate.

    9 PROPRIETARY RIGHTS

  42. 9.1

    The Customer acknowledges and agrees that Supplier and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights or any other rights or licences in respect of the Services or the Documentation.

  43. 9.2

    The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

  44. 9.3

    The Customer hereby grants the Supplier (and where required shall procure the grant to the Supplier of) a non-exclusive right during the Subscription Term to displaythe Customer’s branding, name and logo on the Website as part of the provision of the Services.

  45. 9.4

    The Customer shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with the use of the Customer’s name, branding or logo in accordance with clause 9.3.

  46. 10 CONFIDENTIALITY

  47. 10.1

    Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:

    1. 10.1.1

      is or becomes publicly known other than through any act or omission of the receiving party;

    2. 10.1.2

      was in the other party's lawful possession before the disclosure;

    3. 10.1.3

      is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

    4. 10.1.4

      is independently developed by the receiving party, which independent development can be shown by written evidence.

  48. 10.2

    Subject to clause 10.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of thisAgreement.

  49. 10.3

    Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

  50. 10.4

    A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

  51. 10.5

    The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.

  52. 10.6

    The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

  53. 10.7

    No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

  54. 10.8

    The above provisions of this clause 10 shall survive termination or expiry of this Agreement, however arising.

  55. 11 INDEMNITY

  56. 11.1

    The Supplier shall defend the Customer against any claim that the Customer's use of the Services or Documentation in accordance with this Agreement infringes any Intellectual Property Rights of a third party, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

    1. 11.1.1

      the Supplier is given prompt notice of any such claim;

    2. 11.1.2

      the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and

    3. 11.1.3

      the Supplier is given sole authority to defend or settle the claim.

  57. 11.2

    In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

  58. 11.3

    In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

    1. 11.3.1

      a modification of the Services or Documentation by anyone other than the Supplier; or

    2. 11.3.2

      the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

    3. 11.3.3

      the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

  59. 11.4

    The foregoing and clause 12.3.2 state the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for liability arising from the Customer's use of the Services or Documentation in accordance with this Agreement infringing a third party’s Intellectual Property Rights.

  60. 12 LIMITATION OF LIABILITY

  61. 12.1

    Except as expressly and specifically provided in this Agreement:

    1. 12.1.1

      the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer and for conclusions drawn from such use (including all actions taken or omissions made by the Customer arising from the information it receives from its use of the Services). The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;

    2. 12.1.2

      all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

    3. 12.1.3

      the Services and the Documentation are provided to the Customer on an "as is" basis.

  62. 12.2

    Nothing in this Agreement excludes the liability of the Supplier:

    1. 12.2.1

      for death or personal injury caused by the Supplier's negligence; or

    2. 12.2.2

      for fraud or fraudulent misrepresentation.

    12.3 Subject to clause 12.1 and clause 12.2:

    1. 12.3.1

      the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

    2. 12.3.2

      the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 11), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement, shall be limited to, where the Customer has subscribed for a:

      1. 12.3.2.1

        Standard Subscription, £100; and

      2. 12.3.2.2

        Plus Subscription, the total sum of Fees paid during the 12 months immediately preceding the date on which the claim arose.

    13 TERM AND TERMINATION

  63. 13.1

    This Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Commencement Date.

  64. 13.2

    A Plus Subscription shall continue for the Initial Subscription Term and, thereafter, shall be automatically renewed for successive periods, each equal in length to the Initial Subscription Term (each a “Renewal Period”), unless either party notifies the other of termination of the Plus Subscription, in writing, on at least 10 Business Days’ written notice before the end of the Initial Subscription Term or any Renewal Period, in which case the Plus Subscription shall terminate on the expiry of the applicable Initial Subscription Term or Renewal Period and the Customer shall automatically be subject to a Standard Subscription thereafter.

  65. 13.3

    This Agreement shall continue indefinitely when the Customer is subject to a Standard Subscription, unless:

    1. 13.3.1

      either party gives to the other party at least 10 Business Days’ written notice to terminate, in which case this Agreement shall terminate at the end of the notice period given; or

    2. 13.3.2

      otherwise terminated in accordance with the terms of this Agreement.

  66. 13.4

    Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

    1. 13.4.1

      the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

    2. 13.4.2

      the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

    3. 13.4.3

      the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 13.4.3;

    4. 13.4.4

      the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

    5. 13.4.5

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

  67. 13.5

    On termination of this Agreement for any reason:

    1. 13.5.1

      all licences granted under this Agreement, including the User Subscription, shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

    2. 13.5.2

      each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party save a set out in the terms of any Picfair Image Contributor Agreement in force between the parties; and

    3. 13.5.3

      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 Agreement which existed at or before the date of termination shall not be affected or prejudiced.

    14 FORCE MAJEURE

  68. 14.1

    The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation:

    1. 14.1.1

      acts of God, flood, drought, earthquake or other natural disaster;

    2. 14.1.2

      epidemic or pandemic;

    3. 14.1.3

      terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

    4. 14.1.4

      nuclear, chemical or biological contamination or sonic boom;

    5. 14.1.5

      any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

    6. 14.1.6

      collapse of buildings, fire, explosion or accident;

    7. 14.1.7

      any labour or trade dispute, strikes, industrial action or lockouts; and

    8. 14.1.8

      non-performance by suppliers or subcontractors, provided that the Customer is notified of such an event and its expected duration.

    15 VARIATION

    No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).


    16 WAIVER

    No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.


    17 RIGHTS AND REMEDIES

    Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.


    18 SEVERANCE

  69. 18.1

    If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

  70. 18.2

    If any provision or part-provision of this Agreement is deemed deleted under clause 18 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.


  71. 19 ENTIRE AGREEMENT

  72. 19.1

    This Agreement 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 (save, for the avoidance of doubt, for any PicfairImage Contributor Agreements entered into between the parties).

  73. 19.2

    Each party acknowledges that in entering into this Agreement 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 this Agreement.

  74. 19.3

    Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

  75. 19.4

    Nothing in this clause shall limit or exclude any liability for fraud.


  76. 20 ASSIGNMENT

  77. 20.1

    Save as set out in clause 20.2, neither party shall, without the prior written consent of the other party (not to be unreasonably withheld, delayed or conditioned), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

  78. 20.2

    The Supplier may, subject always to clause 5.7.1, at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.


  79. 21 NO PARTNERSHIP OR AGENCY

  80. 21.1

    Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).


  81. 22 THIRD PARTY RIGHTS

  82. 22.1

    This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.


  83. 23 NOTICES

  84. 23.1

    Any notice required to be given under this Agreement shall be in writing and shall be:

    1. 23.1.1

      delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes; or

    2. 23.1.2

      sent by email to, the e-mail address for each party set out on the Website.

  85. 23.2

    A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by e-mail shall be deemed to have been received at the time of transmission.


  86. 24 GOVERNING LAW

    This Agreement 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.


    25 JURISDICTION

    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 Agreement or its subject matter or formation (including non-contractual disputes or claims).

This Agreement has been entered into on the Commencement Date.







Schedule 1 PROCESSING, PERSONAL DATA AND DATA SUBJECTS

Scope and purpose of processing

The Customer will process the personal data in order to provide the Services to the Customer.

Nature

Storage and transfer of the personal data for the purposes of providing the Services.

Duration of the processing

The Customer will process the personal data for the Subscription Term and as necessary thereafter solely as required by the Applicable Data Protection Laws and any other applicable laws and regulations.

Types of personal data

Any personal data provided within the information that the Customer uploads to the Website in order to create their photography store on the Website, including, but not limited to, names and individuals depicted within photographs etc.

Categories of data subject

The Customer and any identifiable individuals referred to in the data that the Customer uploads to the Website in order to create their photography store on the Website, including those in their photographs uploaded to the Website.