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Terms and Conditions

HAPPY FINISH LIMITED

TERMS AND CONDITIONS OF BUSINESS
FOR CLIENTS (DIRECT SERVICES)
1 Interpretation
1.1 In these Conditions the following expressions shall have the following meanings:
“Charges” the charges charged by Happy Finish to the Client for the provision of Direct Services, as set out in the Estimate as amended from time to time by agreement between the parties, and/or as otherwise agreed between the parties;
“Client” the person named on the Estimate for whom Happy Finish has agreed to provide the Direct Services in accordance with these Conditions (including where requests are made through an intermediary acting on behalf of the Client);
“Client Input Assets” any Documents or other materials, and any data or other information provided by the Client relating to the Direct Services;
“Conditions” the standard terms and conditions for the supply of the Direct Services set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Happy Finish and the Client as set out in the Contract;
“Contract” the contract for the provision of the Direct Services including the Estimate and these Conditions;
“Deliverables” any materials produced by Happy Finish for the Client as a result of the Direct Services, including any data or other information provided by Happy Finish but excluding any Working Assets or Happy Finish Input Assets.
“Digital Artist Introduction means the standard Happy Finish terms and conditions
Conditions” governing the introduction of Digital Artists to a Client (not being Direct Services under these Conditions);
“Direct Services” the direct services to be provided by Happy Finish to the Client being:
(a) interactive production and creative services; and/or
(b) production project management services; and/or
(c) such other services as Happy Finish and its employees may directly provide to a Client (not through a Digital Artist or Artist’s Assistant), as more particularly described in the Estimate;
“Document” includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data and any photographic film, prints, negatives, transparencies, image files, laptops, hard drives and flash drives;
“Estimate” Happy Finish’s estimate for the Direct Services;
“Force Majeure” any cause beyond Happy Finish’s reasonable control including, without limitation, any act of God, war, terrorism, civil disturbance, requisitioning, governmental or parliamentary restrictions, prohibitions or enactments of any kind, import or export regulations, strike lock-out or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining workmen or materials, breakdown of machinery, fire, accident, adverse weather or failure of couriers to deliver on time;
“Happy Finish” Happy Finish Limited, company registration number 05144546, with its principal place of business at 26-28 Underwood Street, London N1 7JQ;
“Happy Finish Input Assets” any Documents or other materials, and any data or other information provided by Happy Finish relating to the Direct Services but excluding any Working Assets or Client Input Material (and not included in the Deliverables) ;

“Working Assets” any master working materials provided and retained by Happy Finish including but not limited to [ ] , but excluding any Deliverables.

1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2 Basis of Contract
2.1 Happy Finish shall provide the Direct Services and the Client shall purchase the Direct Services in accordance with any Estimate accepted by the Client verbally or in writing, subject always to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any Estimate is accepted or purported to be accepted or any order is made or purported to be made by the Client. For the avoidance of doubt, where the Client also enters into a Contract with Happy Finish for the provision of introduction services relating to the introduction of Digital Artists, whether inclusive in the same Estimate or otherwise, the foregoing shall not preclude the application of the Digital Artist Introduction Conditions to such introduction services.
2.2 These Conditions (together with the terms, if any, set out in the Estimate) and/or the Digital Artist Introduction Conditions, if applicable, constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except as agreed in writing between Happy Finish and the Client. Except as set out in clause 2.1 above, all other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
2.3 Happy Finish’s employees, agents and contractors are not authorised to make any representations concerning the Direct Services unless confirmed in writing by Happy Finish. In entering into the Contract, the Client acknowledges that it does not rely on and waives any claims for breach of any representations which are not so confirmed.
2.4 Acceptance of these Conditions shall (without limitation) be deemed upon the earlier of:
2.4.1 Acceptance of any Estimate by or on behalf of the Client (whether verbally or in writing); and
2.4.2 Provision of a purchase order to Happy Finish by or on behalf of the Client (whether verbally or in writing).
3 Supply of the Direct Services
3.1 Happy Finish shall provide the Direct Services to the Client subject to these Conditions. Any changes or additions to the Direct Services or these Conditions must be agreed in writing by Happy Finish and the Client.
3.2 The Client shall, at its own expense, supply Happy Finish with all necessary Documents or other materials, and all necessary data or other information relating to the Direct Services, within sufficient time to enable Happy Finish to provide the Direct Services in accordance with the Contract. The Client shall ensure (and warrants and represents) the accuracy of all such Input Material.
3.3 The Client shall be granted a non-exclusive licence to use software used by Happy Finish for the purposes of providing the Direct Services, as may be necessary for (and solely for the purposes of) enjoying the benefit of the Output Material and subject to such terms regarding territory, term, scope or other limitations as may be included in the Estimate or otherwise specified by Happy Finish in writing from time to time.
3.4 For avoidance of doubt, all intellectual property rights (and other rights) in such software (including in any related source or object codes) shall be retained by Happy Finish in accordance with clause 5.1.2 below and the Client shall have no rights in that regard. Happy Finish may vary, amend or terminate the terms of the licence granted pursuant to clause 3.3 above immediately at any time upon notice in writing to the Client.
3.5 The Client shall have no right to modify, adapt, develop, reverse engineer or otherwise alter any aspect of the Deliverables (including any Working Assets or any software or related object and source codes), unless consent is given in writing in the Estimate or otherwise agreed in writing by Happy Finish from time to time.
3.6 The Client shall notify Happy Finish immediately if it becomes aware of any actual, threatened or suspected infringement, or unauthorised use, of Happy Finish’s rights in the Deliverables Material and/or Working Assets and shall provide such assistance to Happy Finish as it may require to defend its rights and/or take action against such actual, threatened or suspected infringements.
3.7 Happy Finish shall use all reasonable endeavours to provide the Direct Services in accordance with the Estimate and as otherwise agreed between Happy Finish and the Client in writing from time to time, subject to these Conditions, but the Client acknowledges and agrees that time of performance of the Direct Services is not of the essence of the Contract.
3.8 Happy Finish may correct any typographical or other errors or omissions in any brochure, promotional literature, estimate or other document relating to the provision of the Direct Services without any liability to the Client.
3.9 Happy Finish may at any time, without notifying the Client, make any changes to the Direct Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Direct Services.
4 Charges
4.1 Subject to any special terms agreed in the Estimate, the Client shall pay the Charges and any additional sums which are agreed between Happy Finish and the Client for the provision of the Direct Services or which, in Happy Finish’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Client Input Material or any other cause attributable to the Client.
4.2 Happy Finish reserves the right to charge a cancellation fee of twenty-five percent (25%) of the Estimate if the Client cancels the Contract after acceptance (as referred in Condition 2.4). Cancellation after commencement of any of the Direct Services may incur the cancellation fee and/or Happy Finish’s standard charges for the Direct Services carried out, whichever is greater.
4.3 The Client shall reimburse Happy Finish for all reasonable expenses incurred by Happy Finish in the course of performing the Direct Services for the Client including all reasonable travelling, subsistence and other non-incidental expenses including, without limitation, all delivery expenses, couriers and delivery media costs (such as DVD or FTPs). This applies to both fixed price and non-fixed price Estimates.
4.4 Happy Finish shall be entitled to vary the Charges from time to time upon notice to the Client.
4.5 All Charges estimated to the Client for the provision of the Direct Services are exclusive of any applicable Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
4.6 Happy Finish will invoice the Client on a regular basis. The Charges and any additional sums payable should be paid by the Client (together with any applicable Value Added Tax, and without set off or other deduction) in pounds sterling within thirty (30) days of the date of Happy Finish’s invoice.
4.7 The provision of final Deliverables to the Client will be deemed acceptance of satisfactory completion of the Direct Services (whether or not formal acceptance is given by the Client). Where delivery of the Deliverables or progression of the job is delayed by the Client without reasonable cause connected with the Direct Services, Happy Finish reserves the right to invoice the Client on a pro-rata basis for the proportion of the Direct Services completed at the point of delay.
4.8 All export, import, VAT, sales, use or other taxes, levies, duties, fees, governmental charges, exchange rate losses, bank charges and transfer fees shall be the sole responsibility of the Client, and all payments to Happy Finish shall be exclusive of such charges and losses. If the Client is required to withhold any tax or governmental charge on such payments or pay any additional fees or expenses or exchange any foreign currency into pounds sterling, then the amount of any such payment shall be automatically increased to offset such charges and losses, so that the net amount paid to and received by Happy Finish always equals the amount invoiced or otherwise due.
4.9 Happy Finish may, at the Client’s request, invoice a third party (such as an advertising agency, trading vehicle owned by the photographer or photographic agency). However should Happy Finish not receive full payment from the third party billing details supplied by the Client within Happy Finish’s credit terms, then Happy Finish will be entitled to invoice the Client directly for the Direct Services undertaken.
4.10 If full payment is not made by the due date, Happy Finish shall be entitled, without limiting any other right it may have, to:
4.10.1 charge interest on the outstanding amount (both before and after any judgement) at the rate of one percent (1%) per calendar month (compound interest) from the due date until the outstanding amount is paid in full;
4.10.2 suspend provision of any of the Direct Services without liability to the Client until the outstanding amount is paid in full and any times agreed for the provision of the Direct Services shall be amended accordingly; and/or
4.10.3 terminate the Contract in accordance with Condition 7.2.1 below.
5 Rights in Input Material and Output Material
5.1 Subject to clauses 5.2 and 5.3 below, the property rights and any copyright and all other intellectual property rights in:
5.1.1 any Client Input Assets shall belong to the Client; and
5.1.2 any Happy Finish Input Assets and Working Assets and Deliverables shall belong to Happy Finish.
5.2 Happy Finish shall have the right to use the Deliverables (and any Client Input Assets if applicable on licence from the Client) for its own portfolio, public relations and marketing purposes, unless the Client specifically requests otherwise either prior to the Estimate being accepted by it, or while the Services are being provided (provided in the latter case that this is accepted by Happy Finish).
5.3 For the avoidance of doubt, the Client shall not be granted a licence to use, modify or adapt the Working Assets, without the prior written consent of Happy Finish.

5.4 Provided that the following shall not apply to any Documents or other materials, data or other information which are required by law to be disclosed or are public knowledge at the time when they are provided by either party, and shall cease to apply if at any future time they become public knowledge though no fault of the other party:
5.4.1 any Client Input Assets and Deliverables, or other information provided by the Client, which is so designated by the Client shall be kept confidential by Happy Finish; and
5.4.2 all Working Assets and Happy Finish Input Assets, or other information provided by Happy Finish, which is so designated by Happy Finish shall be kept confidential by the Client.
5.5 The Client shall be solely responsible for obtaining any clearances, permissions or otherwise in respect of third party copyright works, trade marks, designs or other intellectual property used in association with the Deliverables. Happy Finish accepts no liability for failure on the part of the Client to do this.
5.6 The Client warrants that any Client Input Material, and its use by Happy Finish for the purpose of providing the Direct Services, will not infringe the copyright or any other rights of any third party, and the Client shall indemnify Happy Finish from and against all and any claims, proceedings, penalties, losses, damages, costs and expenses (including legal expenses) suffered or incurred by Happy Finish arising from any such infringement or alleged infringement.
6 Warranties and Liability
6.1 Happy Finish warrants to the Client that the Direct Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with, and within the times referred to in, the Estimate.
6.2 Happy Finish shall have no liability to the Client for any loss, damage, costs, expenses or any other claims for compensation, arising from any Client Input Material or instruction supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival on non-arrival, or any other fault of the Client.
6.3 The Client shall, at its own expense, retain duplicate copies of all Client Input Material and insure against its accidental loss or damage by the Client, Happy Finish or otherwise. Happy Finish shall have no liability for any such loss or damage, however caused, or for any loss, damage, theft or destruction of Client Input Material. All Deliverables shall be at the sole risk of the Client from the time of delivery to, or to the order of, the Client and, whilst archiving of finished jobs does routinely take place at Happy Finish, Happy Finish accepts no responsibility for Deliverables, including Working Assets, once delivery has taken place. It is the Client’s sole responsibility to ensure that adequate care, provision and insurance of backups of Client Input Materials and Deliverables are maintained.
6.4 Except in respect of death or personal injury caused by the negligence of Happy Finish or its employees or agents, or as expressly provided in these Conditions:
6.4.1 Happy Finish shall not be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or indirect, special or consequential loss, damage, costs, expenses (whether caused by the negligence of Happy Finish , or its employees or agents or otherwise) which arise out of or in connection with the provision of the Direct Services or their use by the Client; and
6.4.2 the entire liability of Happy Finish to the Client and/or any other third party under or in connection with any Contract shall not exceed fifty thousand pounds sterling (£50,000) in aggregate.
6.5 Happy Finish shall not be liable to the Client, or be deemed to be in breach of the Contract, by reason of any delay in performing, or any failure to perform, any of the Direct Services, if the delay or failure was due to any event of Force Majeure. Should any such event of Force Majeure occur for longer than six (6) weeks Happy Finish may cancel or suspend the Contract without incurring any liability for any loss or damage thereby occasioned.
6.6 If the Client does not consider that Happy Finish’s limit of liability as detailed in the Contract (particularly but without limitation Condition 6) will be sufficient to protect its interests, the Client should contact Happy Finish, as appropriate, and Happy Finish will be pleased to discuss with the Client whether it is able to amend its limits and/or increase its insurance cover accordingly. The Client accepts that Happy Finish shall be entitled to charge the Client, and the Client shall pay, an additional fee for accepting any different limit if Happy Finish , as appropriate, agrees to do so.
7 Termination
7.1 The Client shall only be entitled to cancel the Contract on prior written notice to Happy Finish and in accordance with Condition 4.2.
7.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other, if the other:
7.2.1 fails to pay when due any sums due under these Conditions;
7.2.2 commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within fourteen (14) days after being required by written notice to do so;
7.2.3 (in the case of a company) goes into liquidation, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed; or
7.2.4 (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
7.3 Upon the termination of the Contract for whatever reason, all Charges for the Direct Services carried out up until the date of termination shall become immediately due and payable by the Client to Happy Finish.
8 General
8.1 The Contract is personal to the Client and the Client shall not assign, transfer or sub-contract or purport to assign, transfer or sub-contract to any other person any of its rights or obligations under the Contract without the prior written consent of Happy Finish.
8.2 Happy Finish may assign, transfer or sub-contract any of its rights and obligations under the Contract to any other party without the consent of the Client.
8.3 Any notice required or permitted to be given under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
8.4 No failure or delay by Happy Finish in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by Happy Finish of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
8.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
8.6 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
8.7 English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English Courts.

HAPPY FINISH LIMITED

TERMS AND CONDITIONS OF BUSINESS
FOR CLIENTS (INTRODUCTION OF DIGITAL ARTISTS)
1 Interpretation
1.1 In these Conditions the following expressions shall have the following meanings:
“Charges” the Happy Finish Commission and/or the Digital Artist Charges as the context requires;
“Client” the person named on the Estimate for whom Happy Finish has agreed to provide the Services in accordance with these Conditions (including where requests are made through an intermediary acting on behalf of the Client);
“Deliverables” any materials produced by the Digital Artist for the Client as a result of the Digital Artist Services, including any data or other information provided by the Digital Artist but excluding any Working Assets, Digital Artist Input Assets or Happy Finish Input Assets;
“Client Input Assets” any Documents or other materials, and any data or other information provided by the Client relating to the Services;
“Conditions” the standard terms and conditions for the supply of the Services set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Happy Finish and the Client as set out in the Contract;
“Contract” the contract for the provision of the Services including the Estimate and these Conditions;
“Digital Artist” any digital artist recommended and/or introduced by Happy Finish to the Client;
“Digital Artist Charges” the charges charged by the Digital Artist to the Client for the Digital Artist’s Services as set out in the Estimate as amended from time to time by agreement between the Client and the Digital Artist and/or Happy Finish and/or as otherwise agreed between the Digital Artist and the Client, including but not limited to: (a) retouching and/or (b) computer-generated asset creation for still image and motion (video) productions and/or (c) such other services as Happy Finish may recommend and/or introduce a Digital Artist from time to time;
“Digital Artist Input Assets” any materials utilised, procured or produced by the Digital Artist for the Client as a result of the Digital Artist Services but excluding any Client Input Assets and Working Assets (and not included in any Deliverables);
“Digital Artist Services” the services to be provided by the Digital Artist for the Client as may be more particularly referred to in the Estimate as amended from time to time by agreement between the Client and the Digital Artist and/or Happy Finish;
“Direct Conditions” means the standard Happy Finish terms and conditions for the provision of direct services (not being Happy Finish Services relating to the introduction of Digital Artists under these Conditions);
“Document” includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device embodying any other data and any photographic film, prints, negatives, transparencies, image files, laptops, hard drives and flash drives;
“Estimate” Happy Finish’s and the Digital Artist’s estimate for the Services;
“Force Majeure” any cause beyond Happy Finish’s reasonable control including, without limitation, any act of God, war, terrorism, civil disturbance, requisitioning, governmental or parliamentary restrictions, prohibitions or enactments of any kind, import or export regulations, strike lock-out or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining workmen or materials, breakdown of machinery, fire, accident, adverse weather or failure of couriers to deliver on time;
“Happy Finish” Happy Finish Limited, company registration number 05144546, with its principal place of business at 26-28 Underwood Street, London N1 7JQ;
“Happy Finish Commission” the charges charged by Happy Finish to the Client for Happy Finish’s Services as set out in the Estimate as amended from time to time by agreement between the Client and Happy Finish and/or as otherwise agreed between Happy Finish and the Client;
“Happy Finish Input
Assets” any materials utilised, procured or produced by Happy Finish for the Client as a result of the Digital Artist Services, but excluding any Client Input Assets or Working Assets (and not included in any Deliverables);
“Happy Finish Introduction
Services” the introduction services to be provided by Happy Finish for the Client, being the recommendation and/or introduction of a Digital Artist to the Client for the purpose of providing the Digital Artist Services, as may be more particularly referred to in the Estimate;
“Working Assets” means any master working materials produced by the Digital Artist by skilfully combining the Client Input Assets, Happy Finish Input Assets and Digital Artist Input Assets for the Client as a result of the Digital Artist Services including but not limited to layered files, file formats such as compressed video, or other similar assets;
and
“Services” the Happy Finish Introduction Services and/or the Digital Artist Services as the context requires.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2 Basis of Contract
2.1 Happy Finish shall provide the Happy Finish Introduction Services, the Digital Artist shall provide the Digital Artist Services and the Client shall purchase the Services in accordance with any Estimate accepted by the Client verbally or in writing, subject always to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any Estimate is accepted or purported to be accepted or any order is made or purported to be made by the Client. For the avoidance of doubt, where the Client also enters into a Contract with Happy Finish for the provision of direct services from Happy Finish (being, but not limited to, the provision of interactive production and creative services, and/or production management services, but not being the Happy Finish Services), whether inclusive in the same Estimate or otherwise, the foregoing shall not preclude the application of the Direct Conditions to such direct services.
2.2 These Conditions (together with the terms, if any, set out in the Estimate and/or the Direct Conditions, if applicable) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except as agreed in writing between Happy Finish and the Client. Except as set out in clause 2.1 above, all other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
2.3 Happy Finish’s employees, agents, contractors and/or Digital Artists are not authorised to make any representations concerning the Happy Finish Introduction Services unless confirmed in writing by Happy Finish. In entering into the Contract, the Client acknowledges that it does not rely on and waives any claims for breach of any representations which are not so confirmed.
2.4 Acceptance of these Conditions shall (without limitation) be deemed upon the earlier of:
2.4.1 Acceptance of any Estimate by or on behalf of the Client (whether verbally or in writing);
2.4.2 Provision of a purchase order to Happy Finish and/or a Digital Artist by or on behalf of the Client (whether verbally or in writing); and
2.4.3 Engagement of a Digital Artist by the Client (and/or any of its affiliates).
3 Supply of the Happy Finish Introduction Services
3.1 Happy Finish shall provide the Happy Finish Introduction Services to the Client subject to these Conditions. Any changes or additions to the Happy Finish Introduction Services or these Conditions must be agreed in writing by Happy Finish and the Client.
3.2 The Happy Finish Introduction Services are limited to recommending and/or introducing a Digital Artist to the Client. The Digital Artist Services are subject to separate contract and agreement between the Client and the Digital Artist and are not the responsibility of Happy Finish.
3.3 Happy Finish shall use its reasonable endeavours to ensure the suitability of any Digital Artist recommended and/or introduced to the Client, but Happy Finish makes no warranty or representation as to the suitability of any Digital Artist, for the purpose of providing the Digital Artist Services, and the Client should satisfy itself on all such matters.
3.4 Happy Finish’s responsibilities to the Client are to verify references and qualifications and to select Digital Artists that it reasonably considers suitable for the Digital Artist Services in accordance with the Client’s requirements as to skills and experience as notified in writing to Happy Finish. It is the Client’s responsibility to supply Happy Finish with sufficient information and to respond honestly and accurately to Happy Finish’s questions to enable Happy Finish to select a Digital Artist with suitable abilities, qualifications and skills.
3.5 The Client acknowledges and agrees that Happy Finish may provide all information it receives from the Client in relation to its identity, the Digital Artist Services it requires and otherwise to any Digital Artist or prospective Digital Artist it intends to recommend and/or introduce to the Client.
3.6 The Client shall, at its own expense, supply Happy Finish and/or the Digital Artist with all necessary Documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable Happy Finish and the Digital Artist to provide the Services in accordance with the Contract. The Client shall ensure the accuracy of all Client Input Assets.
3.7 Happy Finish shall use all reasonable endeavours to provide the Happy Finish Introduction Services in accordance with the Estimate and as otherwise agreed between Happy Finish and the Client from time to time, subject to these Conditions, but the Client acknowledges and agrees that time of performance of the Services is not of the essence of the Contract.
3.8 Happy Finish may correct any typographical or other errors or omissions in any brochure, promotional literature, estimate or other document relating to the provision of the Services without any liability to the Client.
3.9 Happy Finish may at any time, without notifying the Client, make any changes to the Services which are necessary to comply with any applicable safety or other statutory or regulatory requirements, or which do not materially affect the nature or quality of the Services.
4 Digital Artists and Digital Artist Services
4.1 Digital Artists are independent contractors, not employed or sub-contracted by Happy Finish, but solely recommended and/or introduced by Happy Finish to the Client in accordance with these Conditions.
4.2 Digital Artists are solely selected and engaged directly by the Client.
4.3 The Digital Artist has full and exclusive control over how the Digital Artist Services are to be provided and terms of engagement between the Client and the Digital Artist are as agreed between the Client and the Digital Artist, subject to the Estimate and these Conditions. Happy Finish accepts no liability for the Digital Artist Services.
4.4 If the Client (and/or any affiliate of the Client) engages a Digital Artist recommended or introduced by Happy Finish (whether or not such Digital Artist has provided any Digital Artist Services to the Client) other than through Happy Finish, the Client must promptly inform Happy Finish of such engagement and the Digital Artist Charges for such engagement. The Client shall keep Happy Finish fully informed as to the Digital Artist Charges for such engagement and Happy Finish shall have the right to charge commission in line with the agreed or (if not agreed) usual Happy Finish Commission in relation to such engagement as detailed in Condition 5.3. Such Happy Finish Commission may be charged to and payable by the Client and/or the Digital Artist. This Condition shall apply to any and all engagements which commence whilst the Digital Artist is generally represented by Happy Finish and for twelve (12) months thereafter. This Condition shall survive the termination of the Contract for any reason.
4.5 The Client shall provide Happy Finish with all information requested by Happy Finish promptly upon request for the purpose of Happy Finish carrying out an audit of the Client’s compliance with the Contract. If any audit performed under this Clause reveals a breach of the terms of the Contract the Client shall bear all Happy Finish’s reasonable costs and expenses of such audit.
4.6 Happy Finish accepts no liability for any loss arising to the Client or otherwise if the Digital Artist engaged by the Client is unable, for any reason, to complete the Digital Artist Services. Happy Finish will, at the Client’s request, use its reasonable endeavours to recommend and/or introduce an alternative Digital Artist to carry out and/or finalise the Digital Artist Services as appropriate subject to these Conditions. It is at the Client’s discretion as to whether to engage any alternative Digital Artist and, for the avoidance of any doubt, the cancellation fee referred to in Condition 5.4 will not apply if the Client decides not to proceed with an alternative Digital Artist and to cancel the Contract on that basis. A proportion of the original Digital Artist’s Charges (and associated Happy Finish Commission) may apply for Digital Artist Services already carried out.
4.7 For colour adjustment work, including colour matching to product samples, Happy Finish accepts no responsibility for any final third party print reproduction and the Client acknowledges and agrees that printing is subject to the inherent limitations of the final output and file format required, such as (by way of example only) the approximation of CMYK print proofs and image files to RGB image files.
5 Charges
5.1 Subject to any special terms agreed in the Estimate, the Client shall pay the Digital Artist’s Charges and Happy Finish Commission and any additional sums which are agreed between Happy Finish and/or the Digital Artist and the Client for the provision of the Services or which, in Happy Finish’s or the Digital Artist’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.
5.2 If an Estimate for the Digital Artist Services has been provided by Happy Finish, the Happy Finish Commission for those specific Digital Artist Services estimated is included in the Digital Artist’s Charges and is not in addition.
5.3 Otherwise, if a Digital Artist provides any Digital Artist Services for the Client (and/or any affiliate of the Client) which are not included in an Estimate (whether as part of the original Digital Artist Services or as a separate engagement at the same time or at another time), the Happy Finish Commission is chargeable in addition and may (at Happy Finish’s sole discretion) be charged directly to the Client and/or the Digital Artist at Happy Finish’s standard commission rate from time to time. This Condition shall apply to any and all engagements which commence whilst the Digital Artist is generally represented by Happy Finish and for twelve (12) months thereafter. This Condition shall survive the termination of the Contract for any reason.
5.4 Happy Finish reserves the right to charge a cancellation fee (on behalf of itself and the Digital Artist) of twenty-five percent (25%) of the Estimate if the Client cancels the Contract after acceptance (as referred in Condition 2.4). Cancellation after commencement of any of the Digital Artist Services by the Digital Artist may incur the cancellation fee and/or the Digital Artist’s standard charges for the Digital Artist Services carried out, whichever is greater.
5.5 The Digital Artist’s standard editorial rate is subject to images being used solely in editorial, test and portfolio purposes. If any Deliverables are used for any other purpose, including without limitation advertising, they will be charged at the full advertising rate. The Digital Artist also reserves the right to charge the full advertising rate if a credit is not given to Happy Finish and the Digital Artist, in the form approved by Happy Finish, on editorials as well as for subsequently published portfolio and test deliverables.
5.6 The Client shall reimburse Happy Finish and the Digital Artist for all reasonable expenses incurred by Happy Finish and the Digital Artist in the course of performing the Services for the Client including all reasonable travelling, subsistence and other non-incidental expenses including, without limitation, all delivery expenses, couriers and delivery media costs (such as DVD or FTPs). This applies to both fixed price and non-fixed price Estimates.
5.7 Happy Finish shall be entitled to vary the Happy Finish Commission from time to time upon notice to the Client.
5.8 All Charges estimated to the Client for the provision of the Services are exclusive of any applicable Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
5.9 Unless otherwise agreed between Happy Finish and the Digital Artist, Happy Finish will invoice the Client on behalf of itself and the Digital Artist. The Digital Artist Charges and Happy Finish Commission and any additional sums payable should be paid by the Client (together with any applicable Value Added Tax, and without set off or other deduction) in pounds sterling within thirty (30) days of the date of Happy Finish’s invoice.
5.10 The provision of final Deliverables to the Client will be deemed acceptance of satisfactory completion of the Services (whether or not formal acceptance is given by the Client). Where delivery of the Deliverables or progression of the job is delayed by the Client without reasonable cause connected with the Services, Happy Finish reserves the right to invoice the Client (on behalf of itself and the Digital Artist) on a pro-rata basis for the proportion of the Services completed at the point of delay.
5.11 All export, import, VAT, sales, use or other taxes, levies, duties, fees, governmental charges, exchange rate losses, bank charges and transfer fees shall be the sole responsibility of the Client, and all payments to Happy Finish and the Digital Artist shall be exclusive of such charges and losses. If the Client is required to withhold any tax or governmental charge on such payments or pay any additional fees or expenses or exchange any foreign currency into pounds sterling, then the amount of any such payment shall be automatically increased to offset such charges and losses, so that the net amount paid to and received by Happy Finish and the Digital Artist always equals the amount invoiced or otherwise due.
5.12 Happy Finish (on behalf of itself and the Digital Artist) may, at the Client’s request, invoice a third party (such as an advertising agency, trading vehicle owned by the photographer or photographic agency). However should Happy Finish not receive full payment (for itself and the Digital Artist) from the third party billing details supplied by the Client within Happy Finish’s credit terms, then Happy Finish (on behalf of itself and the Digital Artist) will be entitled to invoice the Client directly for the Services undertaken.
5.13 If full payment is not made by the due date, Happy Finish (on behalf of itself and the Digital Artist) shall be entitled, without limiting any other right it may have, to:
5.13.1 charge interest on the outstanding amount (both before and after any judgement) at the rate of one percent (1%) per calendar month (compound interest) from the due date until the outstanding amount is paid in full;
5.13.2 suspend provision of any of the Services (by Happy Finish and/or the Digital Artist) without liability to the Client until the outstanding amount is paid in full and any times agreed for the provision of the Services shall be amended accordingly; and/or
5.13.3 terminate the Contract in accordance with Condition 9.2.1 below.
6 Rights in Input Material and Deliverables
6.1 Subject to clauses 6.2 and 6.3 below, the property rights and any copyright and all other intellectual property rights in:
6.1.1 any Client Input Assets shall belong to the Client; and
6.1.2 any Working Assets, Digital Artist Input Assets, Happy Finish Input Assets and Deliverables shall belong to Happy Finish and/or the Digital Artist (as applicable).
6.2 Happy Finish shall have the right to use the Deliverables (and any Client Input Assets if applicable on licence from the Client) for its own portfolio, public relations and marketing purposes, unless the Client specifically requests otherwise either prior to the Estimate being accepted by it, or while the Services are being provided (provided in the latter case that this is accepted by Happy Finish).
6.3 For the avoidance of doubt, the Client shall not be granted a licence to use, modify or adapt the Working Assets, without the prior written consent of Happy Finish.
6.4 Provided that the following shall not apply to any Documents or other materials, data or other information which are required by law to be disclosed or are public knowledge at the time when they are provided by either party, and shall cease to apply if at any future time they become public knowledge though no fault of the other party:
6.4.1 any Client Input Assets and Deliverables, or other information provided by the Client, which is so designated by the Client shall be kept confidential by Happy Finish, save that Happy Finish may disclose such information to the Digital Artist or any prospective Digital Artist and/or for the purposes of the Contract and Happy Finish accepts no responsibility for any breach of confidentiality by the Digital Artist which is a matter between the Digital Artist and the Client; and
6.4.2 all Working Assets and Digital Artist Input Assets or other information provided by Happy Finish or the Digital Artist, which is so designated by Happy Finish or the Digital Artist shall be kept confidential by the Client.
6.5 The Client shall be solely responsible for obtaining any clearances, permissions or otherwise in respect of third party copyright works, trade marks, designs or other intellectual property. Neither Happy Finish nor the Digital Artist accepts any liability for failure on the part of the Client to do this.
6.6 The Client warrants that any Client Input Assets, and its use by Happy Finish and the Digital Artist for the purpose of providing the Services, will not infringe the copyright or any other rights of any third party, and the Client shall indemnify Happy Finish, the Digital Artist from and against all and any claims, proceedings, penalties, losses, damages, costs and expenses (including legal expenses) suffered or incurred by Happy Finish and/or the Digital Artist arising from any such infringement or alleged infringement.
7 Warranties and Liability
7.1 Happy Finish warrants to the Client that the Happy Finish Introduction Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with, and within the times referred to in, the Estimate.
7.2 Neither Happy Finish nor the Digital Artist shall have any liability to the Client for any loss, damage, costs, expenses or any other claims for compensation, arising from any Client Input Assets or instruction supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival on non-arrival, or any other fault of the Client.
7.3 The Client shall, at its own expense, retain duplicate copies of all Client Input Assets and insure against its accidental loss or damage by the Client, Happy Finish the Digital Artist or otherwise. Neither Happy Finish nor the Digital Artist shall have any liability for any such loss or damage, however caused, or for any loss, damage, theft or destruction of Client Input Assets. All Deliverables shall be at the sole risk of the Client from the time of delivery to, or to the order of, the Client and, whilst archiving of finished jobs does routinely take place at Happy Finish, neither Happy Finish nor the Digital Artist, accepts any responsibility for Deliverables, including electronic retouched files, once delivery has taken place. It is the Client’s sole responsibility to ensure that adequate care, provision and insurance of backups of Client Input Assets and Deliverables are maintained.
7.4 Happy Finish shall not be liable for the Digital Artist or any Digital Artist Services. The Digital Artist shall not be liable for Happy Finish or any Happy Finish Introduction Services.
7.5 Except in respect of death or personal injury caused by the negligence of Happy Finish (with regard to Happy Finish’s liability) or the Digital Artist (with regard to the Digital Artist’s liability), or their respective employees or agents, or as expressly provided in these Conditions:
7.5.1 Neither Happy Finish nor the Digital Artist shall be liable to the Client by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or indirect, special or consequential loss, damage, costs, expenses (whether caused by the negligence of Happy Finish (with regard to Happy Finish’s liability) or the Digital Artist (with regard to the Digital Artist’s liability), or their respective employees or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client; and
7.5.2 the entire liability of Happy Finish and the Digital Artist to the Client and/or any other third party under or in connection with any Contract shall not exceed fifty thousand pounds sterling (£50,000) in aggregate.
7.6 Neither Happy Finish nor the Digital Artist shall be liable to the Client, or be deemed to be in breach of the Contract, by reason of any delay in performing, or any failure to perform, any of the Services, if the delay or failure was due to any event of Force Majeure. Should any such event of Force Majeure occur for longer than six (6) weeks Happy Finish (on behalf of itself and the Digital Artist) may cancel or suspend the Contract without incurring any liability for any loss or damage thereby occasioned.
7.7 If the Client does not consider that Happy Finish’s or the Digital Artist’s limit of liability as detailed in the Contract (particularly but without limitation Condition 7) will be sufficient to protect its interests, the Client should contact Happy Finish and/or the Digital Artist, as appropriate, and Happy Finish or the Digital Artist will be pleased to discuss with the Client whether it is able to amend its limits and/or increase its insurance cover accordingly. The Client accepts that Happy Finish and/or the Digital Artist shall be entitled to charge the Client, and the Client shall pay, an additional fee for accepting any different limit if Happy Finish or the Digital Artist, as appropriate, agrees to do so.
8 Termination
8.1 The Client shall only be entitled to cancel the Contract on prior written notice to Happy Finish and in accordance with Condition 5.4.
8.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other, if the other:
8.2.1 fails to pay when due any sums due under these Conditions;
8.2.2 commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within fourteen (14) days after being required by written notice to do so;
8.2.3 (in the case of a company) goes into liquidation, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed; or
8.2.4 (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
8.3 Upon the termination of the Contract for whatever reason, all Charges for the Services carried out up until the date of termination shall become immediately due and payable by the Client to Happy Finish.
9 General
9.1 The Contract is personal to the Client and the Client shall not assign, transfer or sub-contract or purport to assign, transfer or sub-contract to any other person any of its rights or obligations under the Contract without the prior written consent of Happy Finish.
9.2 Happy Finish may assign, transfer or sub-contract any of its rights and obligations under the Contract to any other party without the consent of the Client.
9.3 Any notice required or permitted to be given under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
9.4 No failure or delay by Happy Finish in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by Happy Finish of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.5 If any provision of these Conditions is held by any court or competent authority to be illegal, invalid or unenforceable in whole or in part, that provision or part of provision shall be amended to the minimum extent necessary to make it legal, valid and enforceable and the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
9.6 Save for the Digital Artists, who shall have such rights (to the extent that benefits are conferred upon them), a person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
9.7 Without prejudice to the generality of Condition 9.6 and subject always to anything to the contrary agreed in writing directly between the Digital Artist and the Client, the Digital Artist shall be entitled to rely upon the rights, benefits and limitations of liability in the Contract as against the Client and, in particular (as relevant between them) but without limitation, Conditions 6, 7 and 8.
9.8 English law shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English Courts.

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Happy Finish.

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