Terms & Conditons

Terms & Condition's

General Terms and Conditions

for the Image Retouch India

Definitions

The following terms shall have the meaning set forth below:

Account:	The Client’s personal and secured web page, accessible via the Website or as otherwise agreed and in which the Client can, among other things, submit Images and retrieve Materials;
AFP Folder:	The storage location, designated by the Client, as meant in clause 6;
Agreement:	The agreement, including these Terms and Conditions, concluded between image retouch india and the Client for provision of the Service, either in the form of a written agreement or as the result of Image retouch confirmation of the acceptance of an Offer by the Client in accordance with clause 3.1;
API:	A programming interface consisting of a direct and secured internet connection between a Client’s systems and the image retouch india (and Software);
Auto Fetch and Push Function:	The function as meant in clause 6
Auto-Processing:	The form of provision of the Service by image retouch india whereby image retouch india and the Client have agreed the applicable fee for the Images in the Agreement and for the avoidance of doubt, whereby image retouch india does not make separate Offers for particular Images; Any individual or business that has entered into an
Client:	Agreement with Image Retouch India;
Images:	All photos and other images submitted by the Client to Image Retouch India within Client’s Account with regard to which Image Retouch India will provide its Service;
IP Rights:	All intellectual property and ancillary rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, as well as know-how rights;
Login Details:	Any usernames, passwords, keys and other codes used by the Client in order to be provided with the Service;
Material:	The clipped and/ or edited Images resulting from the Service;
Offer:	An offer or quote by Image Retouch India either for providing the Service for i) particular Images, or ii) Images on the basis of an Agreement.
Personal Data:	Any information relating to an identified or identifiable natural person;
Service:	The services provided by Image Retouch India to Client under the terms of an Offer or an Agreement comprising of the editing of Images provided by the Client and converting them into Material, in accordance with the agreed specifications in the accepted Offer or in the Agreement and- if applicable- the use of or access to the Image Retouch India system and Software;
Service Fee:	The charges, fees or price for the Service;
Service Network:	The service network Image Retouch India has established, apart from its own corporate group, and which consists of a number of carefully selected professional companies, with which Image Retouch India has agreements in place and which are engaged in the provision of the Image Retouch India Service;
Website:	The website of Image Retouch India, accessible via https://imageretouchindia.com/, through which Website the Client can obtain access to its personal Account, submit Images and retrieve Materials.

Applicability

2.1 The Terms and Conditions apply to all Agreements pursuant to which Image Retouch India will provide the Service.

2.2 Deviations from and additions to a bespoke Agreement (including these Terms and Conditions) concluded between Parties are only valid if agreed by both Parties in writing.

2.3 Except in the case of clause 2.2 of the Terms and Conditions, Image Retouch India is entitled, at any time, to amend these Terms and Conditions. The most up-to-date version of the Terms and Conditions can be found on the Website or will be brought to Client’s attention.

2.4 The applicability of the Client’s purchasing or other conditions is expressly rejected.

Agreement

3.1 Offers by Image Retouch India shall be understood to be non-binding. An Agreement becomes effective only subject to Image Retouch India’s confirmation of a Client’s acceptance of an Offer. Image Retouch India starting to provide the Service shall be considered as a confirmation.

3.2 Offers which are not accepted become invalid after the expiry of thirty days from the date they were made and/or published on the Website, unless otherwise indicated in the Offer or in the Agreement.

3.3 The Client shall provide accurate and complete information to Image Retouch India, with respect to, inter alia. The Images and the Client specifications for the Materials upon which information Image Retouch India bases its Offer and the details for creation of the Client’s Account. If the aforementioned information proves to be inaccurate or incomplete, Image Retouch India will have the right to amend its Offer or to terminate the Agreement.

3.4 Amendments or additions to the agreed Service at the request of the Client may only take place with the written consent of Image Retouch India. Image Retouch India is not obliged to implement an amendment or addition and may require a separate written agreement to be concluded in respect thereof.

3.5 Image Retouch India will only provide its Services:

with regard to the supported file types, which file types are displayed on the Website or
specified in the Agreement;
if the Images are submitted by means of one of the approved methods of submission, which are listed on the Website or in the Agreement, which may include the Auto Fetch and Push Function;
if the Client uses one of the approved payment methods, which are listed on the Website or in the Agreement; and
If the submitted Images are of the quality of the then-current industry standards.

3.6 If Image Retouch India is not able to provide the Service due to the Client’s failure to comply with the conditions for the provision of the Service by Image Retouch India set forth in clause 3.5 of these Terms and Conditions, Image Retouch India will notify the Client. Image Retouch India cannot be held liable for failure to provide the Service in those circumstances.

3.7 If there are amendments or additions which result in a change to the scope of the agreed Service, for example through additional work, the extra activities arising therefrom will be paid for in accordance with the then-current rates of Image Retouch India, unless otherwise agreed to in writing. In so far as a fixed price has been agreed for the Service, Image Retouch India will inform the Client about the additional charges of the extra activities as referred to in this article.

3.8 The Client acknowledges and agrees that the Materials manufactured by Image Retouch India are clearly of a personal and bespoke nature and are created to order based on specifications as delivered by the Client. Therefore, any statutory regulation that would provide the Client the right of withdrawal provided for in paragraph 1 of article 6 of EU distance selling directive 97/7/EC as implemented by article 7:46d of the Dutch Civil Act (‘Burgerlijk Wetboek’) does not apply.

3.9 The Client acknowledges and agrees that Image Retouch India, notwithstanding clause 13.1 of the Terms and Conditions will be permitted to engage its Service Network for the provision of the Service, subject to the terms and conditions of the Agreement.

Service

4.1. Image Retouch India will provide the Service on the basis of a reasonable endeavours obligation.

4.2. Image Retouch India will, subject to the Agreement, use its reasonable endeavours to provide the Service to the Client within 24 hours either:

after the Client’s acceptance of the Offer made by Image Retouch India following a successful submittal of
the Images by the Client and Image Retouch India’s assessment of those Images; or,
after successful submission of the Images by the Client.

4.3. Notwithstanding clause 4.2 of the Terms and Conditions, the Client understands and accepts that the turnaround time depends on several circumstances, such as the number of Images provided by the Client, the quality of the Images and any additional information provided by the Client. If, despite the reasonable endeavours of Image Retouch India, Image Retouch India fails to provide the Materials in accordance with clause 4.2 of these Terms and Conditions, Image Retouch India will endeavour, as an exclusive remedy to the Client, to provide the Materials within the next 48 hours.

4.4. All delivery dates in relation to the Service issued by Image Retouch India are estimates only. The Client is not allowed to suspend its payment obligation if the anticipated time of delivery is exceeded by Image Retouch India.

4.5. The Client accepts that additions or amendments demanded to the agreed Service by the Client may influence the turnaround time and the reciprocal responsibilities of Image Retouch India and the Client. The fact that additional work arises during the provision of the Service as a result of the Client demanding such additional work will not entitle the Client to cancel or terminate the Agreement.

4.6. The Materials as provided by Image Retouch India shall be deemed to be in conformity with the Agreement if the Materials substantially meet the specifications in the accepted Offer or the specifications described in the Agreement. If the Materials do not substantially meet the applicable specifications, the Client is, as an exclusive remedy and subject to clauses 4.7 and 4.8 of these Terms and Conditions, entitled to request Image Retouch India to re-execute the relevant Service at no additional costs by rejecting the relevant Material, using the reject-function in the online application. The Client understands and accepts, however, that the quality of the delivered Materials depends on, among other things, the quality of the Images provided by the Client. Image Retouch India is therefore free to decide whether re-executing the Service will result in Materials of a higher level of conformity. If, at Image Retouch India’s

Sole discretion, the level of conformity of the delivered Materials cannot be improved, Image Retouch India shall not be obliged to re-execute the Service and the Client shall pay the fee for the Material in the form initially provided.

4.7. The Client’s right to request Image Retouch India to re-execute the Service will lapse after 14 days following notification by Image Retouch India of delivery of the Materials. Upon the Client’s download or any other use of the Materials or lapse of the 14 days’ period, the Materials will be deemed to have been accepted and to be in conformity with the Agreement.

4.8. Image Retouch India shall be entitled to charge an additional fee to the Client if re-executing the Service requires Image Retouch India to make additions to or to amend the agreed Service in order to achieve a higher level of conformity of the Material.

Access to the Service

5.1. In order to create an Account and to use the Service, the Client is required to submit its contact details via the Website, after which submission an Account is created on behalf of the Client. After accessing its Account with its Login Details, the Client will be able to submit Images and to retrieve Materials. For making payments to Image Retouch India, the Client will be redirected to the payment service provider of Image Retouch India or, if so agreed, Image Retouch India shall send an invoice.

5.2. After the Service has been rendered, the Materials will be made available through the Account of the Client. An e-mail will be sent to the Client upon delivery of these Materials. Image Retouch India does not accept any liability concerning the correct reception of this notification e-mail and Image Retouch India therefore advises the Client to regularly check its Account in order to retrieve the Materials. The Service shall be deemed to have been completed by Image Retouch India at the moment the Materials are made available in the User’s Account.

5.3. The Client acknowledges and accepts that it is at all times responsible and liable for all the use made of the Service and, if applicable, the Image Retouch India Systems and Software with the Login Details, including use by third parties, whether authorised or unauthorised. As soon as the Client knows or has reason to suspect that Login Details have come into the hands of an unauthorized party, the Client must promptly notify Image Retouch India thereof, without prejudice to the Client’s own obligation to take effective measures, including but not limited to, where applicable, changing the Login Details.

5.4. The Client accepts that the Website, and, if applicable the Image Retouch India Systems and Software only contain the functionalities and information that are present at the moment of use (“as is” basis).

5.5. Image Retouch India shall in no way whatsoever be liable to the Client for any damage arising out of or resulting from the Client’s Account or the Website being (temporarily) unavailable or for failures or outages.

5.6. The Client shall solely be responsible for the purchase and/or the proper operation of the

infrastructure necessary to properly use the Service and the Website. Image Retouch India shall not be liable for damage or costs on account of transmission errors, malfunctions or non-availability of computer, data or telecom facilities, including the internet.

Auto Fetch and Push

6.1. If so agreed, Image Retouch India shall provide the Services inclusive of the Auto Fetch and Push Function.

6.2. The Auto Fetch Function enables Image Retouch India to fetch Images from a folder on an (s)FTP Server designated by the Client (the “AFP Folder”) and to subsequently push Material to the AFP Folder.

6.3. An AFP Folder can be stored at a Client’s own location or in a Image Retouch India Storage Location. In each case, the Client shall ensure that the AFP Folder has sufficient space available for the Client to upload Images and for Image Retouch India to push the Material. The Client acknowledges and agrees that Image Retouch India shall not be able to push any Material to the extent the size of Material exceeds the space available. Image Retouch India cannot be held liable for failure to provide the Service in those circumstances.

6.4. If the parties agree that the AFP Folder shall be stored at the Client’s location, the Client shall:

ensure that the transfer speed of the internet connection is at least 50+ Mbps;
enable Image Retouch India to make five (5) (s)FTP connections simultaneously; and
fully, properly and promptly make available to Image Retouch India all information and data and give all cooperation reasonably deemed necessary to enable Image Retouch India to access the AFP Folder, which shall include, but shall not be limited to providing Image Retouch India with the (s)FTP account where the relevant AFP Folder is stored.

6.5. If the Parties agree that the AFP Folder shall be stored using a Image Retouch India Storage Location:

The maximum size of (i) all Images that can be uploaded by the Client and (ii) all Material that can be pushed by Image Retouch India onto the AFP Folder on a Image Retouch India Storage Location shall be agreed in writing.
The Client can expand the maximum size upon agreement with Image Retouch India, in which event Image Retouch India shall charge an additional monthly fee, as agreed in writing.

IP Rights

7.1 All IP Rights in relation to the Images provided by the Client will at all times remain with the Client or its licensor(s).

7.2. Image Retouch India shall only be allowed to use (and to allow the parties in Image Retouch India’s Service Network to use) the Images for provision of the Service to the Client and to the extent necessary for the provision of the Service by Image Retouch India to the Client, the Client shall grant Image Retouch India a royalty-free, revocable, non-exclusive right to so use the Images.

7.3. If, due to the provision of Services, any IP Right has originated in relation to the Materials, Image Retouch India hereby assigns to the Client any and all IP Rights it possesses in connection with these Materials. Insofar as (parts of) the IP Rights cannot be assigned or transferred under the relevant national law(s), Image Retouch India authorizes the Client to perform all further acts necessary to transfer to the Client any and all IP Rights Image Retouch India has, may have or will have in connection with the Materials to the Client.

7.4. All IP Rights in the Image Retouch India Systems and Software to the extent used or made available to the Client by Image Retouch India for the performance or provision of the Service, shall remain with Image Retouch India or its licensors. Image Retouch India grants the Client a limited, personal, non-sublicensable, non-transferable and non-exclusive licence to use the Image Retouch India Systems and Software strictly only in order to be provided with the Service in accordance with and for the duration of the Agreement.

7.5. Image Retouch India reserves the right to change the Image Retouch India Systems and Software at any time or to provide the Client with new versions or updated access details. Image Retouch India will announce material changes to the Image Retouch India Systems and Software upon prior notice, allowing a Client sufficient time to prepare for any impact at the Client’s end.

Price and Payment

8.1. After acceptance by the Client of an Offer, the Service Fee specified in the accepted Offer shall be due and payable by the Client, unless otherwise agreed to in writing under an Agreement. The Client uses one of the payment methods specified on the Website, in the Offer or in the Agreement.

8.2. The Service Fee will be in Euro, unless stated otherwise. All amounts due will be exclusive of any sales and turnover tax, such as VAT and other governmental levies/taxes.

8.3. Image Retouch India shall only provide the Service upon receipt of full payment of the Service Fee due, unless otherwise agreed to in writing.

8.4. If payment (in full) has not yet been received by Image Retouch India on the due date, the Client will be in default without prior demand or notice of default being required. As from the date of default the Client will be liable for interest equal to the statutory (commercial) interest rate.

8.5. If the Client, despite demand or notice of default, still fails to pay the amounts due, Image Retouch India may hand over the claim for collection. In that event all costs incurred by Image Retouch India, in connection with overdue payments, such as legal costs and extrajudicial and judicial costs, including the costs of legal assistance, bailiffs and collection agencies, will be payable by the Client. The extrajudicial costs are fixed at no less than 15% of the invoiced amount subject to a minimum of Euro 150,00 excluding VAT.

8.6. Complaints in relation to invoices and/or the Services will not suspend the payment obligations of the Client.

8.7. Image Retouch India will be entitled to suspend the fulfilment of its obligations until such time as the Client has fully paid all Service Fees due.

Privacy

9.1. Image Retouch India respects the Client’s privacy and personal data collection and processing will be in line with Image Retouch India’s privacy policy and the GDPR. Please find Image Retouch India’s full privacy policy on https://imageretouchindia.com/ . By using the Services, the Client agrees to the collection and use of information in accordance with the Image Retouch India Privacy Policy. Visual content, whether or not processed by the Service, is explicitly not considered as personal data within the meaning of this privacy clause.

9.2. Image Retouch India will use the collected Personal Data to manage the Client’s account and to enable invoicing. Image Retouch India may periodically use the collected data for marketing communication purposes as well. Subject to the provisions regarding ‘The Service Network’ in these T&C, Image Retouch India will not share Personal Data with third parties without Client’s prior consent, except where Image Retouch India is required to do so by law. If Image Retouch India processes Personal Data on Client’s behalf, Image Retouch India complies with all obligations under the European General Data Protection Regulation.

Guarantees and Indemnities

10.1. The Client guarantees that:

It is fully entitled to upload the Images and that it has obtained any necessary consents with respect to any individual’s data protection and the protection of privacy;
The Images are correct, complete, unencumbered and not limited or restricted by, and do not infringe upon, any third parties’ rights, including IP Rights, and the use of the Images by Image Retouch India is not in any other way unlawful in respect of third parties;
It will keep secure all Login details and any passwords, codes and related instructions
provided by Image Retouch India or used in relation with the Service;

it will never submit Images that:
are in any way discriminating, offensive and/or obscene;
contain violent or unlawful content; or
harm the interests and reputation of Image Retouch India

It will not intentionally use or enable or demand any third party to use or enable viruses,
Trojan horses, worms, bots, or other software which may cause damage to the Service, the Website, or any other technical aid which may render them inaccessible or which are
intended to circumvent technical protective measures;
will not carry out activities which may impede the functionality of the Service; and
will not use applications that monitor the Service or that copy parts of them.

10.2. The Client shall indemnify Image Retouch India and hold Image Retouch India harmless from and against any and all costs (including reasonable legal fees) and damages incurred by Image Retouch India as a result of:

any third party claim which is made against Image Retouch India in connection with an (alleged)

attributable breach by the Client of the guaranteed obligations under the Agreement;

any and all costs and damages which Image Retouch India may incur as a result of the Client’s breach of the guarantees contained in clauses 10.1.1, 10.1.2, 10.1.3 and 10.1.4, or the Client’s unauthorized use of the Service.

10.3. Image Retouch India guarantees to:

not intentionally include or build in or have included or built in the Material any i) viruses,

Trojan horses, worms, bots or other harmful software or, ii) any commercial solicitation,

chain letters, mass mailings, or any form of “spam

impose on the members of its Service Network:

the obligation with respect to IP Rights as per clause 7.3 of these Terms and Conditions; and
the confidentiality obligation as per clause 13.2 of these Terms and Conditions.

10.4. Image Retouch India will indemnify the Client and shall hold the Client harmless for any and all costs (including reasonable legal fees) and damages incurred by the Client as a result of:

any third party claim which is made against the Client in connection with a breach by Image Retouch India of the guarantees contained in clause 10.3 of these Terms and Conditions; or
the Client having had to initiate legal proceedings in order to obtain the IPRs of any

Materials from any member of Image Retouch India’s Service Network;

10.5. The indemnity obligations of both Parties under these Terms and Conditions are subject to the indemnified Party as soon as possible notifying the indemnifying Party of any such claims or

Proceedings.

Limitation of Liability

11.1. Image Retouch India endeavors to ensure that the Service rendered is of the highest possible quality. However, since the quality of the Service depends on several factors, Image Retouch India cannot guarantee that the quality of the Material lives up to the expectations of the Client.

11.2. The total liability of Image Retouch India towards the Client for breach of contract, in tort or otherwise in any calendar year shall be limited to compensation of the direct damage only up to an amount equal to the Service Fees paid or payable by the Client to Image Retouch India during the calendar year immediately preceding the year in which the damage occurred.

11.3. Neither Party shall be liable for any indirect or consequential damages, or loss of exploitation, productivity, reputation, profits, contracts, investments, time, data, files (including Images and Material) programs and/or documentation.

11.4. Neither Party limits or excludes its liability for wilful misconduct, gross negligence, fraud, fraudulent misrepresentation, death or personal injury.

Force Majeure

12.1. Image Retouch India shall not be liable for any delay or failure to perform its obligations under the Agreement if that delay or failure arises directly or indirectly through force majeure, which is deemed to include an act of God or (without limitation), war or other civil disturbance, decisions of any civil authority, fires, flood, strikes or any other circumstances that can reasonably be deemed beyond the control of Image Retouch India.

12.2. If Image Retouch India cannot perform its obligations under the Agreement as a result of force majeure for a period of more than six (6) weeks, the Client shall have the right to terminate the Agreement with immediate effect without Image Retouch India limiting its other rights or remedies or incurring any liability towards the Client in respect of such termination.

Confidentiality

13.1. Parties shall maintain all information they receive from or about each other strictly confidential, including information concerning Images and Materials. Information will in any case be regarded to be confidential, if one of the parties indicates in writing that it is confidential.

13.2. Parties will impose this obligation of confidentiality also on their employees and third parties hired for the performance of their obligations hereunder, in particular Image Retouch India shall impose the confidentiality obligation of clause 13.1 of these Terms and Conditions on the members of its Service Network.

13.3. A Party shall not be required to maintain confidentiality with respect to any information that (i) was already in the possession of such Party on a non-confidential basis

(ii) has lawfully come into the possession of such a Party on a non-confidential basis or iii) is legally required to be disclosed to a judicial or administrative authority.

Term and Termination

14.1. An Agreement shall be in effect for the term as agreed by the Parties or for as long a period as is required for the Materials to be considered as accepted in accordance with these Terms and Conditions, or until the moment the Client’s right to request Image Retouch India to re-execute pursuant to clause 4.6 of these Terms and Conditions has lapsed.

14.2. Either Party may terminate the Agreement with immediate effect upon written notice to the other Party, if:

the other Party applies for a moratorium of payments, is declared bankrupt or otherwise will no longer be able to meet its financial obligations under the Agreement;

the other Party materially breaches the Agreement and, if such breach can be remedied, fails within a reasonable period, after having been given notice of such breach in writing by the non-breaching Party to remedy such breach.

14.3. Subject to clause 14.2 of the Terms and Conditions, the Client shall not be entitled to terminate the Agreement early.

14.4. If the Client acts in a manner reasonably adjudged by Image Retouch India to be detrimental, in particular when the Client does not fulfil its obligations under these Terms and Conditions, Image Retouch India is entitled to suspend provision of the Service to the Client. Image Retouch India shall not be liable for any loss arising in respect of the foregoing.

Miscellaneous

15.1. Assignment: neither Party is entitled to transfer rights and obligations arising from these Terms and Conditions and/or the Agreement to third parties, except as set forth in clause 3.8.

15.2. Survival: the provisions of clauses 6.4, (transfer of IP Rights), 9, (Privacy) and 13, (Confidentiality) of these Terms and Conditions shall survive termination of the Agreement for whatever reason, and, in addition, the obligations of the Parties under the Agreement that by their nature continue beyond the expiration of the Agreement, shall survive any termination or cancellation of the Agreement.

15.3. Language: the Agreement is concluded in the English language, which language shall be controlling in all respects. If the Agreement is for any purpose whatsoever (whether before or after execution) translated into a language other than English, (i) such translation (a) is provided for convenience only and (b) shall not be binding upon the Parties and (ii) the English language text (a) shall nonetheless constitute the agreement between the Parties and (b) shall at all times prevail, irrespective of whether the translation has been signed or initialled by any of the Parties to this Agreement.

Governing law

The Terms and Conditions, the Agreement and any use the Client makes of the Service are subject to Dutch. Dutch law and any dispute arising out of it that cannot be solved amicably shall be settled before the competent court of Amsterdam, The Netherlands.