Fitzgeralds ("Service" or "System"), is an Internet based web album and photographic sales system operated by Fitzgeralds, ("we" or "us") of Rue Des Caches, St Martins, Guernsey, GY4 6PH on behalf of third party contracted photographers. The Internet web site provides access to the Fitzgeralds System, and laid out below are the terms and conditions of use for the Service. The web site may only be used in accordance with these terms.
The terms laid out below govern the relationship between you as a user ("you or user") and Fitzgeralds. The web site, and the services provided through the web site, can only be used if you agree to these terms.
1. General Terms
1.0 Purchase Terms
These purchase terms ("Purchase Terms") comprise a binding contract between you as a user of the Fitzgeralds Service and Fitzgeralds for the purchase of photographic prints ("Prints") made from digital files supplied by participating photographers.
1.1 Legal Document
Please read these Purchase Terms carefully because they form a legal document. By submitting an order to the Fitzgeralds system, you agree to be bound with Fitzgeralds by these Purchase Terms. If you do not wish to accept these Purchase Terms, you should not submit an order.
1.2 Local Law
Those who choose to access this Service from any location outside the UK are solely responsible for compliance with Local Law if, and to the extent that, it is applicable. In this case, you agree that, by you agreeing to these Purchase Terms with Fitzgeralds, you waive any consumer rights you have which are capable of being waived under your Local Law and that these Purchase Terms are the only terms and conditions that apply between you and Fitzgeralds in respect of your use of the Service and the supply by Fitzgeralds of your Prints.
2. Purchase Terms
By the display and description of this Service, Fitzgeralds does not necessarily agree to process your order and supply your Prints at the prices specified.
2.1 Binding Contract
These Purchase Terms will not form a binding contract between you and Fitzgeralds for the purchase and supply of the Prints, until the following conditions have been met:
a. You have submitted an offer to buy certain Prints ('Order') using the order facility provided; and
b. Fitzgeralds notifies you by e-mail that your Order for Prints has been accepted and Fitzgeralds agrees to supply the Prints to you, provided that you have supplied Fitzgeralds with an e-mail address for the reply. If you fill in the e-mail field when you make an order, you will receive a confirmation by e-mail. This should be immediate.
If you do not fill in the e-mail field, or send in an order by post, you will be sent a confirmation by post. As our order fulfilment system works automatically as soon as the order is received, it is quite possible that you may receive your prints before the order confirmation, which requires more human intervention.
2.2 Loss or Damage
Fitzgeralds will not be responsible for any consequential loss or damage, howsoever arising, as a result of a failure, refusal or inability by Fitzgeralds to fulfil an Order.
3. Price and Specification of Prints
3.1 Prices and Taxes
All prices quoted include United Kingdom Value Added Tax ("VAT"), at the applicable rate from time to time. There is a separate VAT inclusive postage and packaging charge and this is listed with the price and specification of Prints. The total cost is the "Purchase Price". Fitzgeralds shall not be liable for any other sales taxes, customs or import duties or other taxes, which may be imposed on you by any relevant taxing authority. You are responsible for any such taxes.
3.2 Tax Free
If by nature of where you live you are able to purchase prints free of tax, or are able to reclaim tax, you must contact Fitzgeralds before you make your purchase. Once an order has been placed, and payment made, Fitzgeralds cannot enter into any correspondence or dialogue regarding tax issues.
All Purchase Prices and specifications of Prints are subject to change without notice, except where Fitzgeralds has accepted your Order and agreed to deliver the Prints to you in accordance with Clause 2.1.
The Purchase Price payable for photographic prints must be paid in advance by:
a. Secure credit card payment via a Credit Card Authorisation Bureaux chosen by Fitzgeralds, this is currently None
b. Cheque or Postal Order sent with an order for prints by post, to Fitzgeralds, at Rue Des Caches, St Martins, Guernsey, GY4 6PH.
Fitzgeralds retain the right to check with your card provider and/or any credit reference agency or bank to confirm whether or not you are able to pay the Purchase Price. Fitzgeralds has the right to refuse your order at their discretion.
4. Delivery of Prints
All Prints will be delivered to you at the address given during the order process, within the service time-frame specified of your Order being accepted by Fitzgeralds, pursuant to Clause 2.1 above, unless an alternative timeframe is notified to you by Fitzgeralds, prior to the expiry of a 4 working day period.
Notwithstanding Clause 4.0, the time of delivery is an estimate only and Fitzgeralds, shall not be liable for any late delivery of the Prints or any consequential loss or damage caused as a result.
5. Returns Policy
In the event that the Prints are damaged or defective when you receive them, or do not match the description specified in the Service, you will be entitled to return the Prints to Fitzgeralds, within 14 days of receipt by you. In those circumstances, Fitzgeralds, will either reprint the photographs or provide a full refund of the Purchase Price, together with the return postage and packing.
5.1 Not Faulty
In the event that you return any Prints to Fitzgeralds, in accordance with Clause 5.0, and Fitzgeralds, can demonstrate that they were not faulty when received by you, Fitzgeralds, reserves the right to return the Prints to you and to claim the cost of such return postage from you.
6. Duration of Purchase Terms and Termination
These Purchase Terms are binding upon you immediately you accept them in accordance with Clause 2 and they will remain in force until both parties have performed their obligations under these Purchase Terms or either party breaches its obligations under these Purchase Terms.
Termination in accordance with this Clause 6.0 shall not prejudice or affect any right of action or remedy, which shall have accrued or shall thereafter accrue to either party.
7. Fitzgeralds's Responsibilities
Fitzgeralds undertakes to use commercially reasonable endeavours to prevent breaches of security of the Service (including the credit card details provided by you when you submit an Order for any Prints), and to use reasonable endeavours to ensure that any Fitzgeralds suppliers, subcontractors or agents comply with this Clause.
Fitzgeralds will use reasonable endeavours to respond to your Order within the stated time.
7.2 'As Is'
The service is provided on an 'as is' and 'as available' basis, and Fitzgeralds makes no representation or warranty that the Service offered will be accessible, or useable by you, or error free.
7.3 Suspend or Alter
Fitzgeralds reserves the right, at its sole discretion, to suspend or alter the operation of the Service for legal, technical or any other reason. Fitzgeralds will give as much notice as possible prior to taking any of the actions described in this Clause, but prior notice may not always be feasible.
8. User's Responsibilities
8.0 Authorised Owner
You warrant that you are at least 18 years old and are the proper authorised owner of the credit card, details of which you supply to Fitzgeralds's Credit Card Authorisation Bureau when using the System.
8.1 Accurate Information
You warrant that all information given by you in your use of this Service is accurate and not misleading and that you will not use this Service:
a. for any fraudulent or illegal purposes
b. for the transmission or posting of any computer viruses or any material which is defamatory, offensive or of an obscene or menacing character, or in such a way as to cause annoyance, inconvenience or needless anxiety. You agree that you will be liable for any action taken against Fitzgeralds or against you in relation to such use; and
c. in a manner which constitutes a violation or infringement of any right of person, firm or company, including but not limited to, rights of copyright or confidentiality.
8.2 Personal Use
You confirm that all pictures purchased using the Fitzgeralds Service are purchased strictly for your own personal use. If you wish to use any picture within the system for any other purpose, you agree to contact the individual photographer to negotiate terms. An e-mail link is provided within the system to facilitate this.
You acknowledge and accept that all copyright, trademarks and all other intellectual property rights in any part of the Service or any material supplied as part of the Service belongs to Fitzgeralds or its contracted photographers. You agree not to remove any copyright, trademark or any other intellectual property notices contained in the original material and/or from any prints purchased through the service.
You agree to indemnify Fitzgeralds against any claims, costs, expenses or legal proceedings caused as a result of your use of this Service in contravention of Clause 8.1. Further, in these circumstances, Fitzgeralds shall be entitled to treat the contravention as a material breach of these Purchase Terms and terminate the Purchase Terms, cancel any pending orders for Prints made by you and terminate any access permission granted to you by Fitzgeralds forthwith, without notice to you.
9. Limitation of Liability
9.0 Limit of Liability
To the extent that Fitzgeralds is deemed by a court of competent jurisdiction, to have any liability to you in relation to the Service or any Prints supplied by Fitzgeralds, Fitzgeralds's contractors or participating photographers, Fitzgeralds entire liability shall be limited to £500 for any one incident or series of related incidents and up to £1,000 for all incidents in any period of 12 months.
9.1 Control of Images
Although Fitzgeralds prohibits the uploading of certain types of image to the web site, they cannot directly control the images that are uploaded by the participating photographers. It is possible that images may appear on the web site, which are unlawful or offensive. Fitzgeralds cannot accept any liability for any such images or material. If you become aware of any such images or material on the web site that are unlawful or may cause offence, you should contact Fitzgeralds without delay and they will take the matter up with the image owner.
9.2 Not Liable
Fitzgeralds shall not be liable to you, other than through fraudulent or negligent misrepresentation, for:
a. any economic loss, including without limitation, loss of revenue, business, contracts, profits or anticipated savings;
b. any loss of goodwill or reputation;
c. any loss of data; or
d. any special, indirect or consequential loss.
10. Operation of the web site
Fitzgeralds may at its discretion change the format and content of the web site, or any products or services offered, at any time without notice.
Fitzgeralds may suspend or terminate the operation of this web site, or suspend or terminate provision of any products or services offered, for support, maintenance work, in order to update the content or for any other reason. Fitzgeralds may do this at any time and without notice.
11.0 Legal Notices
You may send a legal notice to Fitzgeralds, or any questions you may have concerning these Purchase Terms, by e-mail to [email protected], or by writing to Fitzgeralds, at Rue Des Caches, St Martins, Guernsey, GY4 6PH. Such notices will be effective within 3 days of receipt by Fitzgeralds.
11.1 Give Notice
Fitzgeralds may give notice to you by general notice on its web site, www.fitzgeralds.co.gg by e-mail to your e-mail address on record with Fitzgeralds, or by post to the geographical address on record with Fitzgeralds. Such notice will be effective if sent by e-mail or posted on Fitzgeralds's web site, 3 days from the date it was sent or posted. If sent by regular post, it will be effective 3 days after posting by Fitzgeralds
12. Third Parties
12.0 Third Party Rights
Nothing in these Purchase Terms shall confer on any third party any benefit or the right to enforce any term of this Agreement. For the avoidance of doubt, the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Purchase Terms.
13.0 Entire Agreement
These Purchase Terms form the entire agreement between you and Fitzgeralds and supersede any other oral or written communications, agreements or representations with respect to your use of this Service.
13.1 Change of Terms
Fitzgeralds reserves the right to add to or change the terms of these Purchase Terms in its sole discretion without prior notice. All changes to the Purchase Terms will be effective once posted on the Fitzgeralds site. Fitzgeralds will provide notice of the changes to the Purchase Terms for (30) days after posting the amended Purchase Terms on the Service.
Your continued use of the Service and submission of any Order in accordance with Clause 2.1 above following Fitzgeralds's posting of such changes will be regarded by Fitzgeralds as acceptance of the amended Purchase Terms. If you do not agree to be bound by the amended Purchase Terms, you should exit the Service and not access the Service or submit any Orders for Prints to Fitzgeralds.
13.2 Statutory Rights
Nothing in these Purchase Terms affects your statutory rights as a consumer.
13.3 Court Ruling
If any part of these Purchase Terms are held by a court of competent jurisdiction to be unenforceable, the validity of the remainder of these Purchase Terms will not be affected.
13.4 Beyond Control
If Fitzgeralds is unable to perform any obligation under these Purchase Terms because of a matter beyond its reasonable control, including but not limited to; fire, flood, explosion, war, civil disorder, industrial disputes, whether or not involving its employees, or other disasters or governmental laws and regulations imposed after the fact, or events beyond the reasonable control of Fitzgeralds, Fitzgeralds will have no liability for failure to perform the Service.
13.5 At Own Risk
Your use of the Internet is solely at your own risk and subject to all applicable laws, and Fitzgeralds has no responsibility for any information, software, services or other materials accessed or obtained by you using the Internet.
13.6 No Representation
Fitzgeralds makes no representation that any Prints purchased using the Fitzgeralds service are appropriate for your use, or available, in any other locations.
13.7 Laws of England
These Purchase Terms are governed by the laws of England, and subject to the non-exclusive jurisdiction of the English Courts.