These Terms will apply to any contract of sale between us (Contract). Please read these Terms carefully and make sure that you understand them before ordering. Please note that by placing an Order, you agree to be bound by these Terms and the other documents expressly referred to in it.
Please click on the button marked “I Accept” at the end of these Terms if you accept them. If you refuse to accept these Terms, you will not be able to order from Our site.
You should print a copy of these Terms or save them to your computer for future reference.
We amend these Terms from time to time as set out in clause 5. Every time you wish to place an order, please check these Terms to ensure you understand the terms which will apply at that time. These Terms were most recently updated on 30 June 2013.
These Terms, and any Contract between us, are only in the English language.
1.1When the following words with capital letters are used in these Terms, this is what they will mean:
(a)Event Outside Our Control: is defined in clause 21;
(b)Images: the photograph, image, picture, other photographic good or image that We have created as a result of the Services and are selling to you as set out in the Order;
(c)Order: your order for the Images and/or Services;
(d)Photo Shoot: the process of taking photographs and/or providing Services as agreed in the Order;
(e)Reproduction Conditions: the conditions listed within clause 12.1 and its sub-sections;
(f)Services: the Services that We are providing to you as set out in the Order (for example attending a Photo Shoot and taking photographs);
(h)Subject: any person who forms an integral element of the Image;
(i)Terms: the terms and conditions set out in this document;
(j)Venue: the owners, landlord or other organisation in charge of a venue, premises or location where a Photo Shoot is to happen;
(k)We/Us/Our: Fotkaplus Limited, a company registered in England and Wales under company number under company number 08408760 and We have Our registered office at First Floor, 2 Woodberry Grove, North Finchley, London N12 0DR. Our main trading address is 25 Auldhill Crescent, Bridgend, Linlithgow, United Kingdom, EH49 6NX;
(l)Working day: means any day that is not a Saturday, Sunday or public holiday.
2.If you are a consumer
This clause 2 only applies if you are a consumer.
2.1If you are a consumer, you may only purchase Images from Our site if you are at least 18 years old.
3.If you are a business customer
This clause 3 only applies if you are a business.
3.1If you are not a consumer, you confirm that you have authority to bind any business on whose behalf you use Our site to purchase Images.
4.How the contract is formed between you and us
4.1For the steps you need to take to place on order on Our site, please see Our Booking page [INSERT HYPERLINK].
4.2Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each page of the order process.
4.3After you place an order, you will receive an e-mail from us acknowledging that We have received your order. However, please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 4.4.
4.4These Terms will become binding on you and Us and the Contract between us will be formed when:
(a)We contact you to confirm that We are able to provide you with the Services or Images (Confirmation);
(b)you pay and/or download any Images from Our Site; or
(c)the Services are provided to you,
(whichever occurs first).
4.5If We are unable to supply you with Our Services and/or Image We will endeavour to inform you of this by email and will not process your Order. If you have already paid for a Service and/or Image, We will refund you the full amount as soon as possible.
5.Our right to vary these terms
5.1We may update and revise these Terms from time to time, for example if there are changes in how We accept payment from you or changes in relevant laws and regulatory requirements.
5.2Every time you order Images from Us, the Terms in force at that time will apply to the Contract between you and Us.
5.3Whenever We revise these Terms in accordance with this clause 5, We will keep you informed and give you notice of this by stating that these Terms have been amended and the relevant date at the top of this page.
6.1The presentation of the Images on Our site are for illustrative purposes only. Although We have made every effort to display the colours accurately, We cannot guarantee that your computer’s display of the colours accurately reflect the colour of the Images. Your Images may vary slightly from those shown on Our site.
6.2The packaging of the Images may vary from that shown on Our site.
6.3All Images shown on Our site are subject to availability. We will inform you by e-mail as soon as possible if the Image you have ordered is not available and We will not process your Order if made.
7.1We will supply the Services to you at the date and time agreed between us in writing.
7.2We will make every effort to complete the Services on time. However there may be delays due to an Event Outside Our Control. See clause 21.3 for Our responsibilities when an Event Outside Our Control happens.
7.3We will need certain information from you that is necessary for Us to provide the Services, for example details of the event and time. We will ask for this information from you at the time you place your Order, or contact you in writing about this. If you do not, after being asked by Us, provide Us with this information, or you provide Us with incomplete or incorrect information, We may make an additional charge of a reasonable sum to cover any extra work that is required, or suspend the Services by giving you written notice. We will not be liable for any delay or non-performance where you have not provided this information to Us after We have asked. If We suspend the Services under this clause 7.3, you do not have to pay for the Services while they are suspended, but this does not affect you obligation to pay for any invoices We have already sent you.
7.4We may have to suspend the Services if We have to deal with technical problems, or to make improvements agreed between you and Us in writing to the Services We will contact you to let you know in advance where this occurs, unless the problem is urgent or an emergency. You do not have to pay for the Services while they are suspended under this clause 7.4, but this does not affect your obligation to pay for any invoices We have already sent you.
7.5If you do not pay Us for the Services when you are supposed to as set out in clause 18, We may suspend the Services with immediate effect until you have paid Us the outstanding amounts. We may charge you interest under clause 18.4 (except where you dispute an invoice under clause 18.5).
8.Venue and Photo Shoot rules
8.1We are sometimes limited by rules, regulations and/or guidance put in place by the Venue as to what can or cannot be done in the provision of the Services. In these cases you accept that there may be technical limitations on the Services, Images and/or equipment used at the Venue and/or Photo Shoot.
8.2We would advise that you make yourself aware of any specific regulations in good time ahead of e.g. any Photo Shoot, and if these conflict with your needs in relation to the Services and/or Image, negotiate with the Venue in advance.
9.1By entering into a Contract, you undertake in relation to the Subject that:
(a)model releases from the Subject have been obtained;
(b)irrevocable permission from the Subject (and/or the parent or guardian of the Subject) has been granted to use the Image for any of Our commercial or non-commercial purposes in any and all media, including, without limitation, in Our printed publications, presentations, promotional materials, in the advertising of Our goods or services, on Our site, in its original format or edited or altered in any way which We deem appropriate (acting reasonably);
(c)if the Subject is under 16, you are the parent or guardian and will be present during any Photo Shoot.
10.Airbrushing of Images
10.1We can provide an airbrushing and/or re-touching service on Image(s) where agreed in advance and in writing between us. This is a unique, bespoke service.
10.2If We agree to provide this bespoke service, you give Us full creative title and artistic licence to adjust, improve and/or change the photo or Image to the best of Our ability, based upon your requests.
11.1Copyright in all Images is owned by Us.
11.2Your right to use any Image from this site depends on payment to Us where (and when) required according to the Contract and compliance with the Terms.
11.3All original digital files created by Us remain Our property.
12.Use of image
12.1We grant you a personal, non-exclusive, non-transferable right to use and reproduce the relevant Image subject to the following Reproduction Conditions:
(a)payment is made in accordance with clause 18; and
(b)you credit Us for use of the images and provide a copyright attribution, of a size and colour that can be easily read, by stating “Image used under licence from and is the copyright of Fotkaplus Limited”;
(c)you ensure that any persons contained within an Image are not depicted in a bad light or in a way that they might find offensive, this includes but is not limited to the use of images in or in relation to:
(i)pornography, “adult videos” in advertisements, advertisements relating to adult entertainment, dating or escort services;
(ii)tobacco, alcohol, medicinal & herbal products;
(iv)political or pressure group endorsements;
(vi)uses that are defamatory, unlawful, offensive or imply that the model suffers from a physical or mental infirmity, ailment or condition.
13.1Your use of Our site is governed by Our Terms of Website Use and Website Acceptable Use Policy. Please take the time to read these, as they include important terms which apply to you.
13.2Access to some content on Our site is restricted. If you are provided with a username, identification code, password or any other piece of information as part of Our security procedures you agree that:
(a)you are the sole and exclusive owner of any password We issue to you (‘Password’);
(b)you will be responsible for the confidentiality and use of Our site and the Password;
(c)We may rely upon instructions and/or communications given and/or entered by you or anyone else using your Password, and you will be bound to any expense incurred in reliance on such instructions and communications.
13.3We have the right to disable any username, identification code, password or any other piece of information, whether chosen by you or allocated by Us as part of Our security procedures, at any time, if in Our opinion you have failed to comply with any of the provisions of these Terms.
13.4You may not:
(a)copy, resell, rent, redistribute, sub-licence and/or give away any digital image purchased;
(b)withhold a credit for the Image or copyright attribution (such as that mentioned in clause 13.2(b)) unless We agree to you doing so in writing;
(c)produce greeting cards for sale (unless for personal use or We agree to you doing so in writing).
13.5We reserve the right to charge a reasonable additional fee if the Images are used for purposes other than what is detailed by you in the Order.
14.How We use your personal information
15.Your consumer right of return and refund
This clause 10 only applies if you are a consumer.
15.1If you are a consumer, you have may have additional rights to cancel or amend a Contract under the Consumer Protection (Distance Selling) Regulations 2000 (‘Distance Cancellation Right’), in accordance with (and dependent on) the remaining clauses in this clause 15.
15.2You may only exercise this Distance Cancellation Right if:
(a)the Contract was formed at a distance (for example if you placed an Order online or over the phone); and
(b)written notice of the cancellation or amendment is made within the following time scales (whichever occurs first):
(i)in relation to Services, within seven working days, beginning from the day after the Contract has been formed;
(ii)before the Images have been delivered, within seven working days, beginning from the day after the Contract has been formed; or
(iii)if the Images have already been delivered, you have a period of 14 (fourteen) working days in which you may cancel, starting from the day you receive the Images,
this time period is called the Cancellation Period.
15.3However, this Distance Cancellation Right does not apply:
(a)where We have started to fulfil an Order for Images and/or Services prior to the end of the Cancellation Period (and you have agreed to this in the Order or otherwise);
(b)to any bespoke Images, custom-made Images, or Images that have been made to your specification or are clearly personalised (for example photographs of a wedding, an event or special occasion, of you, friends, pets, family members etc);
(c)to newspapers, periodicals or magazines;
(d)to Images which have been downloaded immediately after payment;
(e)to software, DVDs or CDs which have a security seal which you have opened or unsealed.
15.4To cancel an Order, please contact Us in writing to tell Us by sending an e-mail to firstname.lastname@example.org by sending a letter to 25 Auldhill Crescent, Bridgend, Linlithgow, United Kingdom, Postcode, EH49 6NX. You may wish to keep a copy of your cancellation notification for your own records. If you send Us your cancellation notice by e-mail or by post, then your cancellation is effective from the date you sent us the e-mail or posted the letter to us.
15.5If you amend or cancel an Order in accordance with clauses 15.1 – 15.5 (and return any Images provided if relevant):
(a)We will refund you that part of the price, if any paid for the Services and/or Images after deducting or charging a reasonable cost, if any had been incurred by us, in respect of work carried out in respect of the Services and/or Images to be provided to you under the Order and/or used by you prior to cancellation.
(b)We will process the refund due to you as soon as possible on the credit card or debit card used by you to pay;
(c)if you returned the Images to us because they were faulty or mis-described, please see clause 15.7.
15.6If the Images were delivered to you:
(a)you must return the Images to us as soon as reasonably practicable;
(b)unless the Images are faulty or not as described (in this case, see clause 15.7), you will be responsible for the cost of returning the Images to us;
(c)you have a legal obligation to keep the Images in your possession and to take reasonable care of the Images while they are in your possession.
15.7As a consumer, you will always have legal rights in relation to Services and/or Images that are faulty or not as described. These legal rights are not affected by the returns policy in this clause 15 or these Terms. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
16.1If you have selected to collect the Images from Our Premises, you can collect them from Us at any time during Our working hours of 9am – 5pm on weekdays.
16.2Delivery will be completed when We deliver the Images to the address you gave us or you collect them from Us.
16.3Please note that timescales for delivery and delivery charges will vary depending on the nature and availability of the Images and your address. Unfortunately, We do not deliver to addresses outside the UK. You may place an order for Images from outside the UK, but this order must be for delivery to an address in the UK.
16.4We will contact you with an estimated delivery date. Occasionally Our delivery to you may be affected by an Event Outside Our Control. If We are unable to meet the estimated delivery date because of an Event Outside Our Control, We will contact you with a revised estimated delivery date.
16.5If delivery is unable to be made (e.g. no one is available at your address to take delivery) and the Images are no longer available to collect from the delivery company (such as Royal Mail), the Images should eventually be returned to Us, in which case, please contact Us.
16.6The Images will be your responsibility from the completion of delivery.
16.7You own the Images once We have received payment in full, including all applicable delivery charges.
16.8If We are not able to deliver the whole of the Order at one time due to operational reasons or shortage of materials, We will deliver the Order in instalments (We will not charge you extra delivery costs for this). However if you ask Us to deliver the Order in instalments, We may charge you extra delivery costs. Each instalment shall constitute a separate contract governed by these Terms. If We are late delivering an instalment or one instalment is faulty, that will not entitle you to cancel any other instalment.
17.Price of Images and delivery charges
17.1The prices of the Images will be as quoted on Our site or provided to you from time to time. We take all reasonable care to ensure that the prices of Images are correct at the time when the relevant information was entered onto the system or provided to you. However if We discover an error in the price of Image(s) you ordered, please see clause 17.5 for what happens in this event.
17.2Prices for Our Images may change from time to time, but changes will not affect any order which We have confirmed with a Confirmation.
17.3The price of an Image includes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, We will adjust the VAT you pay, unless you have already paid for the Images in full before the change in VAT takes effect.
17.4The price of an Image does not include delivery charges. Our delivery charges are as quoted on Our site or provided to you from time to time. To check relevant delivery charges, please refer to Our Delivery Charges page [INSERT HYPERLINK].
17.5Our site contains a large number of Images. It is always possible that, despite Our reasonable efforts, some of the Images on Our site may be incorrectly priced. We will normally check prices as part of Our dispatch procedures so that:
(a)where the Image’s correct price is less than the price stated on Our site, We will charge the lower amount when dispatching the Images to you. However, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, We do not have to provide the Images to you at the incorrect (lower) price; and
(b)if the Image’s correct price is higher than the price stated on Our site, We will contact you as soon as possible to inform you of this error and We will give you the option of continuing to purchase the Image at the correct price or cancelling your order. We will not process your order until We have your instructions. If We are unable to contact you using the contact details you provided during the order process, We will treat the order as cancelled and notify you in writing.
18.How to pay
18.1You can pay for Images using a debit card or credit card online. We accept most types of cards, please contact us for further details.
18.2Payment for the Images and all applicable delivery charges is in advance.
18.3By placing an order, you confirm that the credit or debit card that is being used is your own, or is being used with full authorisation of the card holder. All credit and debit card holders will be subject to validation checks and authorisation by the card issuer. If the issuer of your card refuses to authorise payment to Us, We will not be able to process your order, nor will We be liable for any delay or non-delivery of the Services and/or any Image as a result.
18.4If you do not make any payment due to Us by the due date for payment, We may charge interest to you on the overdue amount at the rate of 3% a year above the base lending rate of the Bank of England from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgement. You must pay Us interest together with any overdue amount.
18.5However, if you dispute an invoice in good faith and contact Us to let Us know promptly after you have received an invoice that you dispute it, clause 18.4 will not apply for the period of the dispute.
19.Our liability if you are a business
This clause 19 only applies if you are a business customer.
19.1If a particular photographer is booked/selected in advance, but becomes ill, injured or is otherwise unable to supply the Services We will use Our best endeavours to book a replacement photographer. If a replacement photographer is unable to be used, Our liability is limited to a refund of any payments received by Us.
19.2We only supply the Images for internal use by your business, and you agree not to use the Image for any re-sale purposes.
19.3Nothing in these Terms limit or exclude Our liability for:
(a)death or personal injury caused by Our negligence;
(b)fraud or fraudulent misrepresentation;
(c)breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(d)defective Images under the Consumer Protection Act 1987.
19.4Subject to clause 19.3, We will under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a)any loss of profits, sales, business, or revenue;
(b)loss or corruption of data, information or software;
(c)loss of business opportunity;
(d)loss of anticipated savings;
(e)loss of goodwill; or
(f)any indirect or consequential loss.
19.5Subject to clause 19.3 and clause 19.4 , Our total liability to you 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 200% of the price of the Images.
19.6Except as expressly stated in these Terms, We do not give any representation, warranties or undertakings in relation to the Images. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, We will not be responsible for ensuring that the Images are suitable for your purposes.
20.Our liability if you are a consumer
This clause 20 only applies if you are a consumer.
20.1If a particular photographer is booked/selected in advance, but becomes ill, injured or is otherwise unable to supply the Services We will use Our best endeavours to book a replacement photographer. If a replacement photographer is unable to be used, Our liability is limited to a refund of any payments received by Us.
20.2If We fail to comply with these Terms, We are responsible for loss or damage you suffer that is a foreseeable result of Our breach of these Terms or Our negligence, but We are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of Our breach or if they were contemplated by you and us at the time We entered into the Contract.
20.3We only supply the Images for domestic and private use. You agree not to use the Image for any commercial, business or re-sale purposes, and We have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
20.4We do not in any way exclude or limit Our liability for:
(a)death or personal injury caused by Our negligence;
(b)fraud or fraudulent misrepresentation;
(c)any breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
(d)any breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples); and
(e) defective Images under the Consumer Protection Act 1987.
21.Events outside Our control
21.1We will not be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under a Contract that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 21.2.
21.2An Event Outside Our Control means any:
(a)labour disputes, strikes, lock-outs or other industrial disputes (whether involving that Our own workforce or a third party’s);
(b)default of suppliers or subcontractors;
(c)event beyond the reasonable control of you or us (or any person acting on our behalf) and includes, without limitation:
(i)interruption or failure of utility service, including but not limited to electric power, gas or water;
(ii)failure of public or private telecommunications networks
(iii)failure of any public or private transport network;
(iv)acts of God, including but not limited to fire, flood, earthquake, windstorm, loss at sea, epidemics, or other natural disaster;
(v)war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict;
(vi)compliance with any regulation or law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law);
(viii)breakdown of equipment, plant or machinery;
(ix)nuclear, chemical or biological contamination or sonic boom;
(x)fires, explosions or accidental damage;
(xi)collapse of building structures.
21.3If an Event Outside Our Control takes place that affects the performance of Our obligations under a Contract:
(a)We will contact you as soon as reasonably possible to notify you; and
(b)Our obligations under a Contract will be suspended and the time for performance of Our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects Our delivery of Images to you, We will arrange a new delivery date with you after the Event Outside Our Control is over.
22.Information about us and how to contact us
22.1When We refer, in these Terms, to “in writing”, this will include e-mail.
22.2If you have any questions or if you have any complaints, please contact Us. You can contact Us by telephoning Our customer service team at (0) 1506 834779 or by e-mailing Us at email@example.com.
22.3If you wish to contact Us in writing, or if any clause in these Terms requires you to give Us notice in writing (for example, to cancel the contract), you can send this to Us by e-mail, by hand, or by pre-paid post to Fotkaplus Limited at 25 Auldhill Crescent, Bridgend, Linlithgow, United Kingdom, Postcode, EH49 6NX or to firstname.lastname@example.org.
22.4If We have to contact you or give you notice in writing, We will do so by e-mail, by hand, or by pre-paid post to the address you provide to Us in the Order.
22.5If you are a business, please note that any notice given by you to Us, or by Us to you, will be deemed received and properly served immediately when posted on Our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
23.Other important terms
23.1We may transfer Our rights and obligations under a Contract to another organisation, but this will not affect your rights or Our obligations under these Terms.
23.2You may only transfer your rights or your obligations under these Terms to another person if We agree in writing.
23.3This contract is between you and Us. No other person shall have any rights to enforce any of its terms.
23.4Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
23.5If We fail to insist that you perform any of your obligations under these Terms, or if We do not enforce Our rights against you, or if We delay in doing so, that will not mean that We have waived Our rights against you and will not mean that you do not have to comply with those obligations. If We do waive a default by you, We will only do so in writing, and that will not mean that We will automatically waive any later default by you.
23.6Please note that Fotkaplus Limited is not a charity and that We are a for-profit limited company. We do however work with charities and/or charitable organisations from time to time, such as the Aberlour Child Care Trust (which is a Scottish Charity having number SC007991 and a Guarantee Company having number SC312912). For further details please see the services listed on Our site and or get in touch by emailing email@example.com .
23.7If you are a consumer, please note that these Terms are governed by Scots law. This means a Contract for the purchase of Images through Our site and any dispute or claim arising out of or in connection with it will be governed by Scots law. You and We both agree that the courts of Scotland will have non-exclusive jurisdiction. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of England or Wales, you may also bring proceedings in England or Wales.
23.8If you are a business, these Terms are governed by Scots law. This means that a 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), will be governed by Scots law. We both agree to the exclusive jurisdiction of the courts of Scotland.