Terms and Conditions
You may use this website to look at our products and services on web pages offered to the general public. This website is copyrighted by imageHOLDERS Limited, who own the imageHOLDERS trademark and operates this website.
This website has administrative functions intended to be kept private to the business and to users explicitly authorised to use the administrative interface. We ask that you do not attempt to use the administrative interface and that if you accidentally or intentionally use the administrative interface without explicit authorisation by an officer of the company, that you refrain from taking damaging activity and that you notify us of the breach as soon as practicable.
GENERAL TERMS OF SALE
These general terms of sale (“Conditions”) apply to any of our Products or Services including those found on www.imageholders.com, or in any product brochures and/or literature or in any drawings, designs, prototypes, samples and custom Products except for any support Services which are covered by a separate Support Services Contract. Please read these Conditions carefully before ordering any Products and/or Services. You should understand that by ordering any of our Products and/or Services you agree to be bound by these Conditions and that if you refuse to accept these Conditions, you will not be able to order any Products and/or Services from imageHOLDERS.
“Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Contract” means a contract between imageHOLDERS and a Customer, comprising of these Conditions or such other replacement terms and conditions as may be notified to the Customer from time to time (copies of which are available on request from imageHOLDERS) together with all Order Confirmations (including any Customer Specifications) and, where applicable, special terms and conditions of sale as are specified in imageHOLDERS catalogues, price lists or other literature.
“Data Protection Law” means (i) the Data Protection Act 2018; and (ii) the EU General Data Protection Regulation (Regulation 2016/679) together with any transposing, implementing or supplemental legislation.
“imageHOLDERS”,” we”,” us” or “our” means imageHOLDERS Limited, a company registered in England and Wales with company number 4387715 and with a registered office at 42c Cobham Road, Ferndown Industrial Estate, Wimborne, Dorset, England, BH21 7QG.
“Customer” or “you” means any party identified as the customer in a Contract to whom imageHOLDERS may agree to supply Products or Services from time to time in accordance with a Contract.
”Customer Specification” means any specification for any customised Products, Services, Third Party Software and/or Third Party Hardware as set out by the Customer in an Order and as confirmed by imageHOLDERS in the Order Confirmation.
“Deliverables” means Products and/or Third Party Hardware and/or Third Party Software as may be sold and supplied by imageHOLDERS to the Customer in accordance with any Contract
“Due Date” the date of the Order Confirmation unless otherwise agreed to in writing by imageHOLDERS.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, tooling, rights in computer software, database rights and rights in data, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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” means the order made by a Customer via email, post, telephone or via the official order form for Products and Services on the Website, including any schedules and appendices.
“Products” means imageHOLDERS proprietary products as may be sold and supplied by imageHOLDERS to the Customer in accordance with any Contract.
“Services” means any design, installation or support services provided by us except for any support services which may be covered by a separate Support Services Contract.
“Third Party Hardware” means any PCs, tablets, printers, scanners or other computer hardware within a Product specified on any Order Confirmation.
“Third Party Software” means any software for use on the Third Party Hardware within a Product specified on any Order Confirmation.
“Website” means imageHOLDERS’ website, currently found at www.imageholders.com.
Construction: In these Conditions, the following rules apply:
a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); a reference to a party includes its representatives, successors or permitted assigns; a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; any phrase introduced by the terms including, include, in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and a reference to writing or written includes faxes and e-mails.
1. OUR RIGHT TO VARY THESE CONDITIONS
1.1 We have the right to revise and amend these Conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and for any other reason.
1.2 You will be subject to the policies and Conditions in force at the time that you order Products from us, unless any change to those policies or these Conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these Conditions before we send you the Order Confirmation.
1.3 imageHOLDERS reserves the right to alter or amend these Conditions for certain classes of Products or Customers and will confirm any new conditions or material changes in
writing to you in such instances.
2. BASIS OF CONTRACT
2.1 Your Order constitutes an offer to us to buy a Product and/or Services in accordance with these Conditions. All Orders are subject to acceptance by us and we will confirm such acceptance to you by sending you an e-mail that confirms that your Order has been accepted by us with an order confirmation and/or pro forma invoice (the “Order Confirmation”). A Contract will only be formed when we send you the Order Confirmation.
2.2 The Contract will relate only to those Products and/or Services which are referred to in the Order Confirmation. We will not be obliged to supply any other Products and/or Services which may have been part of your Order until the acceptance of your Order for any such Products and/or Services has been confirmed in a separate Order Confirmation.
2.3 Save for support services provided by imageHOLDERS to the Customer, which will be governed by a separate Support Services Contract, a Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of imageHOLDERS which is not set out in a Contract.
2.4 These Conditions apply to a Contract and will prevail over any other terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by us shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue or as specified.
2.6 All of these Conditions shall apply to the supply of Products, Services, Third Party Software and Third Party Hardware except where application to one or the other is specified as excluded.
3. PRODUCTION AND DELIVERY INCLUDING CUSTOMISED PRODUCTS
3.1 Where applicable we shall provide any custom Products and/or Services to the Customer in accordance with the Customer Specification in all material respects. Any change to the Customer Specification must be agreed in writing by both parties and may be subject to additional costs which may be invoiced by imageHOLDERS in accordance with Clause 4.
3.2 The Customer is responsible for confirming that the specification of any devices and/or software are fit for purpose. Unless otherwise specified on the Order Confirmation imageHOLDERS will not be responsible for any testing and/or the resolution of problems arising from the integration of devices with any specific software or applications.
3.3 Products are manufactured and assembled to order. We will use reasonable endeavours to dispatch non-custom Products within 10 to 14 days of the Order Confirmation with delivery by next day courier available in the UK or international courier (usually UPS air freight). However, it may take considerably longer for bespoke, custom or large Orders.
3.4 We will use all reasonable endeavours to ensure that your Order will be fulfilled by the delivery date set out in the Order Confirmation or, if no delivery date is specified, within a reasonable time of the date of the Order Confirmation. However, any dates stated on an Order Confirmation are estimates only and time shall not be of the essence in the fulfillment of any Order.
3.5 We shall use all reasonable endeavors to meet any performance dates for the Services specified in the Order Confirmation but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.6 We shall have the right to make any changes to the Products and/or Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Product and/or Services, and we shall notify you in any such event.
3.7 We shall deliver the Products and/or Services to the location(s) set out in the Order Confirmation or such other location as the parties may agree in writing (“Delivery Location”).
3.8 We shall ensure that the Products and/or Third-Party Hardware are properly packed and secured in such manner as to enable them to reach the Delivery Location in good condition.
3.9 We may deliver Products by installments, in which case each installment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
3.10 The risk in any of the Deliverables shall pass to the Customer on completion of delivery. The parties agree that delivery shall be completed upon the physical arrival of the Deliverables to the Delivery Location.
3.11 Title to any of the Deliverables shall not pass to the Customer until imageHOLDERS has received payment in full in cleared funds.
3.12 Until title has passed to the Customer, the Customer shall:
3.12.1 hold the Deliverables on a fiduciary basis as imageHOLDERS’ bailee;
3.12.2 store the Deliverables separately from all other goods held by the Customer so that they remain readily identifiable as imageHOLDERS’ property;
3.12.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverables;
3.12.4 maintain all Deliverables in satisfactory condition and keep them insured against all risks for their full price on imageHOLDERS’ behalf from the date of delivery;
3.12.5 give imageHOLDERS such information relating to the Deliverables as we may require from time to time.
3.13 If before title to any Deliverable passes to the Customer, the Customer becomes subject to any of the events listed in Clauses 12.2 or 21.3.2 or 21.3.3 or imageHOLDERS reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, without limiting any other right or remedy imageHOLDERS may have, imageHOLDERS may at any time require the Customer to deliver up the Deliverables at the Customer’s sole cost and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Deliverables are stored in order to recover them.
4. PRICE AND PAYMENT
4.1 Your Order Confirmation will state agreed price, target delivery date, Delivery Location and any other third party information required in order to accurately fulfil the Order. It is the Customer’s responsibility to check the information on the Order Confirmation before signature and in any event report any error within 48 hours of receipt.
4.2 The price and payment terms for all Products and/or Services are those set out in the Order Confirmation or, if no price or payment terms are quoted on the Order Confirmation, the price will be that set out in imageHOLDERS’ standard price list as at the date of delivery (which is available upon request from imageHOLDERS). Any prepayment will be due and payable on the Due Date.
4.3 The price, unless explicitly agreed on the Order Confirmation, is exclusive of VAT and all costs and charges of import duties, packaging, insurance and transport which shall be paid by the Customer.
4.4 Prices for Products and Services are liable to change at any time, but, subject to Clause 4.1, changes will not affect Orders in respect of which we have already sent you
an Order Confirmation.
4.5 Our Product catalogue and Website contain a large number of Products and it is always possible that some of the Products listed on the Website or in a separate catalogue may be incorrectly priced. Notwithstanding Clause 4.2, we are under no obligation to provide any Product to you at the incorrect (lower) price, even after we have sent you an Order Confirmation.
4.6 Unless explicitly agreed otherwise in the Order Confirmation or in any Support Services Contract, the charges for installation and support Services shall be on the following time and materials basis:
4.6.3 the charges shall be calculated in accordance with imageHOLDERS’ standard daily fee rates, which are available upon request from imageHOLDERS;
4.6.4 imageHOLDERS’ standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm. Work outside of these hours will be charged at a higher rate which shall be confirmed to the Customer by imageHOLDERS on request;
4.6.5 imageHOLDERS shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom imageHOLDERS engages in connection with the installation and support Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by imageHOLDERS for the performance of the Services, and for the cost of any materials.
4.6.6 ImageHOLDERS reserves the right to increase the price of the Products or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Services to imageHOLDERS that is due to:
126.96.36.199 any increases in taxes and duties;
188.8.131.52 any request by the Customer to change the delivery date(s), quantities or types of Services ordered, or the Customer Specification; or
184.108.40.206 any delay caused by any instructions of the Customer in respect of the Products or Services or failure of the Customer to give imageHOLDERS adequate or accurate information or instructions or cooperation in respect of the Services.
4.7 Without limiting any other right or remedy of imageHOLDERS, if the Customer fails to make any payment due to imageHOLDERS under the Contract by the Due Date for payment specified on the Order Confirmation or, if no date is specified, within 30 days of the date of invoice, imageHOLDERS shall have the right to charge interest on the overdue amount at the rate of 8% per cent per annum above the then current Bank of England’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
4.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against imageHOLDERS in order to justify withholding payment of any such amount in whole or in part. ImageHOLDERS may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by imageHOLDERS to the Customer.
5. OUR REFUNDS POLICY & GUARANTEE
5.1 This guarantee does not extend to any Third Party Hardware or Third-Party Software supplied with or used with the Products. Any such liability is the responsibility of the relevant third party suppliers.
5.2 Unless otherwise specified on your Order Confirmation, imageHOLDERS guarantee for a period of 5 years following delivery to you that any Products you purchase will be free from any material defects due to faulty materials.
5.3 This guarantee shall not apply in the event that:
5.3.1 the defect arises from any improper use of the Product, or if there is any continued use of the Product after the occurrence of any defect;
5.3.2 there is any unauthorised modification to, or repair or maintenance of, the Product;
5.3.3 the defect consists of, or arises from, any defect in the Product which was discovered or which ought to have been discovered prior to any use of the Product;
5.3.4 the defect arises from a failure to follow imageHOLDERS’ instructions or to adhere to good trade practice with respect to the Product, or with respect to the use, assembly, installation, storage or maintenance thereof, including, without limitation, affixing the Product to an unsuitable surface or using unsuitable fixings in conjunction with the Product;
5.3.5 the defect arises from fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
5.3.6 the defect arises as a result of imageHOLDERS following any drawing, design or Customer Specification supplied by the Customer;
5.3.7 the Product differs from the Customer Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards;
5.3.8 the defect arises from any exposure of the Product to any foreign agent including, without limitation, any chemicals which may cause discolouration, or any abrasive materials; or
5.3.9 the defect arises from any exposure of the Product to fire, flood or explosion.
5.4 Subject to Clause 5.3 , our liability for any defect guaranteed by us shall in all cases be limited to, at our option, the replacement or repair of the defective Product. Replacement
or repair is the sole and exclusive remedy under this guarantee.
5.5 In order to make any claim under this guarantee, you must notify us in writing, without undue delay by returning the defective Product to us for inspection, carriage paid by you and accompanied by a description of the alleged defect, stating when it occurred and (if different) when it was discovered.
5.6 We will examine the returned Product and will notify you of your repair or replacement Product via email within a reasonable period of time.
5.7 imageHOLDERS will not refund or replace any non-faulty Product, unless agreed (in imageHOLDERS’ sole discretion).
5.8 All claims under this guarantee are subject to the following conditions:
5.8.1 Unless agreed with imageHOLDERS otherwise, Products must be returned in their original box and packaging and the marks, numbers or references indicated on the Products or packaging shall neither be covered, defaced, altered nor erased. The removal, covering, altering or defacing of any imageHOLDERS markings shall invalidate any warranty and or guarantee associated with the Product.
5.8.2 All Products sold for onward resale shall be resold only by qualified personnel in premises suitable for their storage, display and sale under satisfactory conditions.
6. PRODUCT RECALL
6.1 If imageHOLDERS is the subject of a request, court order or other directive of governmental or regulatory authority to withdraw any Products from the market (“Recall
Notice”) it shall immediately notify the Customer in writing enclosing a copy of the Recall Notice.
6.2 If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Products from the market it shall immediately notify imageHOLDERS in writing enclosing a copy of the Recall Notice.
6.3 Unless required by law, the Customer may not undertake any recall or withdrawal of the Products without the written permission of imageHOLDERS and only then in strict compliance with imageHOLDERS' instructions about the process of implementing the withdrawal.
7. OUR LIABILITY
7.1 Subject to Clause 5 , all warranties, representations, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
7.2 Without limiting the generality of Clause 7.1 , we shall have no liability to you for any i) consequential losses, ii) loss of profits and/or damage to goodwill, iii) economic and/or other similar losses, iv) special damages and indirect losses, v) business interruption, loss of business, contracts and/or opportunity; or vi) inconvenience, delay or loss of production.
7.3 Without limitation to any of the foregoing, our aggregate liability to you (whether for breach of contract or for negligence or otherwise howsoever), for any loss or damage of whatsoever nature and howsoever caused, shall be limited to and in no circumstances shall exceed the price of the Product(s) and Services purchased from us.
7.4 Without limitation or prejudice to any of the foregoing, you shall fully and promptly indemnify and hold us harmless against any and all losses, damages, costs and expenses whatsoever and howsoever arising from any breach of any obligation or duty under any of these Conditions, the Contract, or otherwise, whether attributable to you, your servants or agents, or to any subcontractors appointed by you.
7.5 Nothing in these Conditions shall exclude or limit in any way our liability i) for death or personal injury caused by our negligence, ii) under section 2(3) of the Consumer Protection Act 1987, iii) for fraud or fraudulent misrepresentation; or iv) for any matter for which it would be illegal for us to exclude, or attempt to exclude, our liability.
8. CLIENT OBLIGATIONS
8.1 If your Order is for Products or Services for delivery outside the UK, they may be subject to import duties and taxes which are levied when the delivery reaches the Delivery Location. You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your Order. If you require, we may be able to provide deliveries on a duty paid basis, details of which will be confirmed on your Order Confirmation.
8.2 Please also note that you must comply with all applicable laws and regulations of the country for which the Products and Services are destined. We will not be liable for any breach by you of any such laws.
8.3 The Customer shall:
8.3.1 ensure that any Customer Specification is accurate and complete, it being recognised by the parties that the Customer has responsibility for the proper selection and specification of any Third Party Hardware and Third Party Software to be housed in any Product;
8.3.2 co-operate with imageHOLDERS in all matters relating to the Products and the Services;
8.3.3 provide imageHOLDERS, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by imageHOLDERS to provide the Services;
8.3.4 provide imageHOLDERS with such information and materials as imageHOLDERS may reasonably require to create the Products and supply the Services, and ensure that such information is accurate in all material respects;
8.3.5 obtain and maintain in good time all necessary licences (including import licences), permissions and consents which may be required for the Products and Services; and
8.3.6 keep and maintain all materials documents and other property of imageHOLDERS (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to imageHOLDERS, and not dispose of or use the Supplier Materials other than in accordance with written instructions or authorisation.
8.4 If imageHOLDERS’ performance of any of its obligations under a Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, including prompt payment of invoices, imageHOLDERS shall without limiting its other rights or remedies have the right to suspend manufacturing of the Products and/or performance of the Services until the Customer remedies the act(s) or omission(s) in question.
8.5 To the extent such act(s) or omission(s) by the Customer prevents or delays imageHOLDERS’ performance of any of its obligations, imageHOLDERS shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from imageHOLDERS’ failure or delay to perform any of its obligations under a Contract and the Customer shall reimburse the imageHOLDERS on written demand for any costs or losses sustained or incurred by imageHOLDERS arising directly or indirectly from the Customer’s act(s) or omission(s).
9. WRITTEN COMMUNICATIONS
You accept that communication “in writing” with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.
10.1 All notices given by either Party must be sent to the CEO of the other Party at the address shown on the Order or Order Confirmation.
10.2 Notice will also be deemed received and properly served immediately when posted on the Supplier’s website (for non-material changes) or , if sent, 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.
11. TRANSFER OF RIGHTS AND OBLIGATIONS
11.1 Any Contract between you and us is binding on you and us and on our respective successors and assigns.
11.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent.
11.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of a Contract.
12. EVENTS OUTSIDE OUR CONTROL
12.1 We 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 events outside our reasonable control (“Force Majeure Event”).
12.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
i) strikes, lock-outs or other industrial action; ii) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; v) impossibility of the use of public or private telecommunications networks; vi) the acts, decrees, legislation, regulations or restrictions of any government; or vii) official regulations, transportation difficulties, working difficulties, machine breakdowns, fires, failure of suppliers, or other causes, whether similar or not.
12.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
13.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these Conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
13.2 A waiver by us of any breach, default, right or remedy shall not constitute a waiver of any subsequent breach or default.
13.3 No waiver by us of any breach, default, right or remedy shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing by a Director of imageHOLDERS.
If any of these Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
15. ENTIRE AGREEMENT
14.1 Subject to any Support Services Contract between the parties these Conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
14.2 We each acknowledge that, in entering into a Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these Conditions.
16. RELIANCE ON INFORMATION APPEARING ON OURWEBSITE
Commentary and other information, materials and/or images appearing on our website are not intended to be relied upon or to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on such information by any visitor to our website, or by anyone who may be informed of any of its contents.
17. PRODUCT INFORMATION
17.1 The Customer shall ensure that any safety information of whatever kind provided by us in relation to the Products supplied is passed, where the Products are supplied for use at work, to the Customer’s employees or, where the Products are supplied for resale, to the subsequent purchaser.
17.2 The Customer shall not alter, mask or remove any such safety information from the Products.
18. INTELLECTUAL PROPERTY
18.1 The parties acknowledge that, except as expressly provided to the contrary in a Contract, all Intellectual Property Rights in and/or relating to the Products and Services shall vest absolutely on creation with imageHOLDERS or its licensors. imageHOLDERS shall grant (or shall procure the grant) to the Customer of a non-exclusive licence to enable the Customer to make use of the relevant Intellectual Property Rights as necessary for the Customer to make use of the Products and the Services.
18.2 Any knowledge of third parties infringing imageHOLDERS Intellectual Property Rights must be reported to imageHOLDERS immediately. Any infringement of our Intellectual Property Rights will be vigorously pursued.
18.3 This Clause 18 shall survive termination of the Contract.
19.1 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, nor any of the terms of this Contract, except as permitted by Clause 19.2.
19.2 Each party may disclose the other party’s confidential information:
19.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause; and
19.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
19.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights or perform its obligations under or in connection with this Agreement.
20. DATA PROTECTION
20.1 Capitalised terms used in Clause 20 but not defined in these Conditions shall have the meanings given in the Data Protection Law. Although Data Protection Law ultimately determines status, the parties agree that, if relevant for the purposes of this Agreement, the Customer is the Controller and imageHOLDERS is the Processor. “Data Protection Law” shall mean: (i) the Data Protection Act 2018; and (ii) the EU General Data Protection Regulation (Regulation 2016/679) together with any transposing, implementing or supplemental legislation.
20.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of all such Customer Data.
20.4 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against imageHOLDERS shall be for imageHOLDERS to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by imageHOLDERS in accordance with the archiving procedure referred to above. imageHOLDERS shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by imageHOLDERS to perform services related to Customer Data maintenance and back-up for which it shall remain liable in accordance with clause 20.8).
20.5 In the event that imageHOLDERS Processes the Customer Data that is also Personal Data (the “Data”), imageHOLDERS shall only do so for the purposes described in, and for the duration of, a Contract. The parties acknowledge that the Personal Data will consist of contract names, work telephone number, work address, work email addresses and marketing preferences sourced from Orders and email/telephone communications.
20.6 If imageHOLDERS is aware that Customer’s Processing instructions infringe applicable laws, imageHOLDERS shall notify the Customer immediately (unless prevented from doing so by applicable laws) and not carry out the relevant Processing.
20.7 imageHOLDERS shall implement appropriate technical and organisational measures to ensure the Data is kept sufficiently secure, and not transfer the Data outside of the European Economic Area other than in accordance with Data Protection Law. All persons permitted to Process the Data by imageHOLDERS shall be subject to confidentiality commitments.
20.8 imageHOLDERS shall be permitted to use third-party Processors to Process the Data for the purposes of providing operational platforms (including cloud-based enterprise resource planning and customer relationship management). The Customer agrees to such use of the third party Processors for the period of the Contract. The Customer may request which third party Processors that imageHOLDERS use at any point during the Contract, and imageHOLDERS will notify the Customer of any intended changes to its third party processors, giving the Customer the opportunity to object to such change. If the Customer does not object within 14 days of such notice, such change will be deemed to be accepted. imageHOLDERS shall impose data protection obligations on any third-party Processor it appoints on no less onerous terms than set out in this clause 20 and shall remain liable for any breaches caused by its third party Processors.
20.9 imageHOLDERS shall provide, at the Customer’s cost, reasonable assistance to the Customer to demonstrate compliance with the Data Protection Laws, including but not limited to: (i) ensuring compliance with its security, breach notification, impact assessment, audit and prior consultation obligations; and (ii) responding to: (a) any request from a Data Subject to exercise its rights under Data Protection Law; and (b) any other correspondence, enquiry or complaint received in connection with the Processing of the Customer Data.
20.10 If it becomes aware of a Personal Data Breach in relation to the Customer Data, imageHOLDERS shall inform the Customer without undue delay and provide reasonable assistance to the Customer so that the Customer can fulfil any data breach reporting obligations it may have under Data Protection Law.
20.11 Subject to applicable law, upon termination or expiry of a Contract, imageHOLDERS shall (at the Customer’s election) destroy or return all Customer Data in its possession or control. This requirement shall not apply to the extent that imageHOLDERS is required by applicable law to retain some or all of the Customer Data, or to Customer Data it has archived on back-up systems, which Customer Data imageHOLDERS shall securely isolate and protect from any further Processing, except to the extent required by law, until deletion is possible.
21.1 Without prejudice to any rights that have accrued under any Contract or any of its rights or remedies, imageHOLDERS may terminate the Contract at any time but will use reasonable commercial endeavours to give you not less than one month’s written notice.
21.2 imageHOLDERS may terminate the Contract at any time if the Customer fails to pay any amount due under the Contract on the Due Date for payment and remains in default not less than 7 days after being notified in writing to make such payment.
21.3 Without prejudice to any rights that have accrued under any Contract, or any of its rights or remedies, either party may terminate any Contract with immediate effect by giving written notice to the other party if:
21.3.1 the other party commits a material breach of any material term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
21.3.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or if either party becomes subject to (or proposes to be become subject) any formal insolvency procedure such as receivership, liquidation, administration, voluntary arrangements (including a moratorium) or bankruptcy;
21.3.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
21.3.4 the other party (or its employees or associates) are found to be involved in acts of bribery or corruption in breach of either the UK Anti Bribery Act of 2010 or any anti-bribery or corruption legislation set out by the regulatory bodies in the country in which the other party transacts business.
Neither Party may vary these Conditions or any other conditions to the Contract without the written approval of a director of the other Party.
23. LAW AND JURISDICTION
23.1 Each 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.
23.2 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 a Contract or its subject matter or formation.