Terms & Conditions
1. Scope
These Standard Terms and Conditions of Sale (“Terms”) shall govern the sale by Photoblocs Inc of all goods and/or services as well as all subsequent transactions between Photoblocs and the purchaser (“Purchaser”). Purchaser acknowledges and agrees that these Terms shall constitute part of any final contract of sale (“Sales Agreement”) that may be entered into between Purchaser and Photoblocs. In the event of any inconsistency between the terms and conditions contained in any other document and these Terms, these Terms shall prevail unless otherwise agreed upon in writing by Photoblocs or its duly authorized representative. Photoblocs shall not be bound by any terms and conditions affixed to Purchaser’s purchase order or other procurement documents that are in addition to or inconsistent with these Terms. Neither commencement of performance nor delivery by Photoblocs shall be deemed or constituted as acceptance of Purchaser’s additional or conflicting terms and conditions. Terms are subject to change at Photoblocs’s sole discretion at any time.
2. Price & Terms of Payment
1. The price for all goods and services shall be expressly set out in the Sales Agreement, delivered in the form of a shopping cart checkout on www.Photoblocs.com. Where no price has been specified, the price shall be based on Photobloc’s pricing listed on the homepage of Photoblocs (www.Photoblocs.com) on the date that the Sales Agreement was executed by the Purchaser.. Photoblocs reserves the right, by giving notice to Purchaser at any time, to increase the price of goods and services to cover:
(i) foreign exchange fluctuation and increases in the costs of labour, materials and manufacturing; and
(ii) any delay or change in delivery dates, quantities or specification of goods and services occasioned or requested by Purchaser.
2. Unless otherwise agreed upon in writing, Photobloc’s invoices shall due for payment immediately and delivery shall only be made against advance payment. Unless otherwise agreed upon in writing by Photoblocs, all payments shall be in Barbadian dollars (BBD) and must be made directly to Photoblocs in accordance with the payment options described on Photobloc’s website. Unless otherwise agreed upon in writing, Purchaser shall not have any right of deduction or set-off. Objections to Photoblocs’s accounting, account statements, account reconciliations, etc. must be received in writing by Photoblocs within a period of four (4) weeks from the date of the invoice or other applicable. In the event that Purchaser fails to provide a timely objection notice to Photoblocs, the terms of the invoice or other document shall be deemed to have been irrevocably accepted by Purchaser. Notwithstanding the foregoing, Photoblocs reserves the right to correct, at any time, any invoicing errors, including calculation errors, which may arise from time to time.
3. Delivery of Goods and Performance of Services
1. Unless otherwise agreed upon in writing, Photoblocs shall deliver goods at any time after Photoblocs has notified Purchaser that goods are ready for delivery by means of an order confirmation notice. Notwithstanding the foregoing, a maximum delivery period of two to four (2-4) weeks applies from the conclusion of the Sales Agreement. Selection of the carrier and route of delivery shall be made by Photoblocs.
2. Photoblocs will use reasonable efforts to deliver goods in the shortest time possible. However, specific dates and times will not be guaranteed.
3. Unless otherwise agreed upon in writing by the parties, Photoblocs reserves the right to deliver goods in installments and/or perform services in stages. Each delivery of goods shall be treated as a separate transaction and payment thereof shall be in proportion to the overall purchase price set out in the Sales Agreement. Delay or failure by Photoblocs to deliver an installment and/or perform a stage of service in accordance with these Terms shall not entitle Purchaser to repudiate or cancel the delivery of other installments or stages of goods under the Sales Agreement.
4. Reminders and final deadlines must be communicated in writing.
5. Photoblocs shall not be liable to Purchaser for any delay or failure to deliver goods and/or perform services including but not limited to any cause beyond Photoblocs’s reasonable control, including, without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, illness or injury to workers, delayed or failed deliveries by subcontractors, power failure, damage or destruction of production facilities, riot, insurrection, transportation delays or defaults, delay in supply or shortages of fuel, components, raw materials or supplies, labour shortage, acts or omissions of third parties, action of any governmental authority, or any other cause beyond the reasonable control of Photoblocs (the “Force Majeure”). In such event, Photoblocs must promptly provide Purchaser with written notice of the Force Majeure. Photoblocs’s time for delivery and/or performance shall be extended for a period equal to the time lost by reasons of the Force Majeure without subjecting Photoblocs to any liability or penalty. If the Force Majeure event lasts longer than forty-five (45) calendar days, Photoblocs may immediately terminate all or part of the Sales Agreement, without incurring any liability or penalty, by providing written notice of such cancellation to Purchaser.
6. For greater certainty, Photoblocs shall not be liable for any damages, losses, costs or expenses (collectively, the Damage”) resulting from Photoblocs Posterjack’s delay in delivery of goods and/or provision of services to Purchaser unless such Damage arises from the gross negligence of Photoblocs. Notwithstanding the foregoing, where the gross negligence of Photoblocs causes a delay in the delivery of the goods or provision of services, Purchaser’s sole remedy shall be the payment of compensation equal to half of a percent (0.5%) per week up to a maximum of five percent (5%) of the value of the portion of the delivery which cannot be used on time for its intended purpose as a result of the delay.
7. Because of variations in equipment, paper, inks and other conditions, reasonable variations in color between the original submitted digital image and the print produced by Photoblocs must be expected. Prints delivered with variations of this kind shall be considered as acceptable performance.
4. Subject of agreement
1. The subject of this Agreement is the production of prints of images submitted by Client to Photoblocs via an online interface and the printing thereof by Photoblocs and subsequent delivery of finished prints to the Client.
2. Photoblocs is entitled and reserves the right to have all or part of the Service performed by third parties.
5. Inspection and Acceptance of Goods and Services
1. Notwithstanding (i) payment, (ii) passage of title, or (iii) prior inspection or tests, all goods and services furnished under Sales Agreement shall be subject to Purchaser’s right of inspection and acceptance upon delivery.
2. Goods: Following delivery and within three (3) calendar days of receipt of goods by Purchaser, Purchaser shall provide Photoblocs with a written notice containing the full details of any alleged defect or non-conformity in goods (“Rejection Notice”). Purchaser may return rejected goods to Photoblocs at Purchaser’s risk and expense and in accordance with Photobloc’s instructions. Photoblocs shall make the final determination as to whether its goods are defective or non-conforming. Purchaser’s exclusive remedy and Photoblocs’s entire liability to Purchaser in the event of a rejection shall be expressly limited to either the prompt replacement of the goods, the repair of any defect or non-conformity or, at Photoblocs’s option, the issuance of a credit or refund for the purchase price of the defective or non-conforming goods. Notwithstanding the foregoing, in the event that Purchaser fails to provide a timely Rejection Notice to Photoblocs, Purchaser will be deemed to have irrevocably accepted goods. Moreover, the use of any goods by Purchaser, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute irrevocable acceptance of goods by Purchaser.
6. Title
Title to and ownership of all goods shall not pass to Purchaser until payment of the purchase price and any Additional Costs has been made in full to Photoblocs.
7. Changes and Cancellation
1. No Sales Agreement which has been executed by Photoblocs may be cancelled or amended by Purchaser except with the approval in writing of Photoblocs and on terms that Purchaser shall indemnify Photoblocs in full and on demand against all loss (including loss of profit), costs (including the cost of all labour and materials used, as well as accounting, legal and clerical costs), damages, charges and expenses incurred by Photoblocs as a result of the cancellation or change.
2. There is no right to cancel an executed Sales Agreement in which goods were custom produced as per the customer’s specification, or were clearly designed for the customer’s personal need.
8. Content of the image files, damage of third party rights
1. The Purchaser is solely responsible for the content of any submitted image files.
2. The customer warrants, that he will not submit any image file that infringes any patent, trademark, copyright or other intellectual or proprietary right of any party. The customer could be liable to pay substantial claims for indemnification by a third party for infringing copyright laws. The customer is liable for all consequences of violation of aforementioned rights and indemnifies Photoblocs from all liability.
3. When executing a Purchase Agreement, the Purchaser is responsible for ensuring that all uploaded image files do not violate any law, especially laws related to child pornography. Photoblocs reserves the right to report any images that Photoblocs judges as potential violations of the law to the applicable authorities.
9. Limited Warranty
1. Except as otherwise specified herein, Photoblocs warrants that: (i) all goods and services purchased hereunder are free from defects in material and workmanship and conform to the requirements of Sales Agreement; (ii) Photoblocs has good title to goods and the right to sell them to Purchaser; and (iii) goods and services shall conform to the written Specifications, if any, described in the Sales Agreement.
2. Unless otherwise agreed upon in writing, the warranty period for all goods delivered by Photoblocs will expire three (3) calendar days after the date of the delivery of goods to the Purchaser (the “Warranty Period”). If Purchaser believes that the goods and/or services are defective or deficient, Purchaser shall provide Photoblocs with a written notice by letter or e-mail, containing the full details of the alleged defect or deficiency and setting out the date of the order confirmation, the delivery confirmation or the invoice (the “Rejection Notice”). At Photobloc’s direction, Purchaser shall return the defective or deficient goods to Photoblocs at Purchaser’s risk and expense and in accordance with Photobloc’s return policy in effect from time to time, failing which any and all warranty obligation on Photobloc’s part shall become void. Photoblocs shall promptly investigate such claimed breach and shall, at its sole discretion and within thirty (30) days of the date of the Rejection Notice either: (i) provide information to Purchaser confirming that no breach of warranty has in fact occurred; or (ii) advise Purchaser of Photobloc’s planned corrective action. If Photoblocs determines that the Rejection Notice was given without cause, Purchaser shall reimburse Photoblocs for all applicable costs and expenses thereby occasioned to Photoblocs. If a breach of warranty has in fact occurred, Photoblocs shall, at its sole discretion, promptly:
(i) repair or replace the defective goods at no additional cost to Purchaser;
(ii) issue credit or refund amounts paid by Purchaser related to the portion of goods and/or services in breach of warranty; or
(iii) unless the defect in question is a minor one, cancel the Sales Agreement. All costs incidental to repairing or replacing defective goods or correcting or re-performing the deficient services shall be borne by Purchaser and in no event shall Photoblocs be liable for such costs. All warranty repairs or replacements and any services that have been re-performed or corrected under warranty shall only be warranted for the balance of the original Warranty Period.
3. Notwithstanding anything contained herein to the contrary, where Photoblocs is required to perform corrective work, Photobloc’s warranty shall be limited to the goods actually delivered. Photoblocs shall only warrant the proper functionality of its products and components where the faulty functioning in question cannot be attributed to incorrect or incomplete information provided by Purchaser.
4. The Purchaser shall not be entitled to withhold payments on account of warranty claims or other counter-claims not recognized by Photoblocs.
5. Warranty Exclusions: This warranty excludes normal wear and tear and ordinary deviations in size, weight or quality. This warranty also excludes coverage for used goods and seconds as well as goods not manufactured by Photoblocs or its affiliates. Repair or replacement of goods and/or re performance or correction of services due to:
(i) misuse or abuse; (ii) improper use or maintenance; (iii) failure to observe instructions; (iv) mishandling or testing by Purchaser, its affiliates and agents; (v) negligence; (vi) alterations, maintenance or repair work undertaken by Purchaser or third parties; (vii) excessive stress; (viii) accident; (ix) improper storage; (x) use of incompatible supplies or cleaning agents; (xi) an event of Force Majeure; (xii) chemical influences; (xiii) foreign object damage; or (xiv) damage in transit, are excluded from Photobloc’s warranty obligations.
6. The preceding paragraphs set forth the exclusive remedy for all claims based on failure of, or defect in, goods sold hereunder, whether the failure or defect arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. Upon the expiration of the warranty period, all such liability shall terminate. Unless otherwise agreed in writing by Photoblocs, this warranty shall not be assigned to any third party. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. Photoblocs DOES NOT WARRANT ANY GOODS OR SERVICES OF OTHERS, WHICH PURCHASER HAS DESIGNATED.
10. Returns & Refunds
1. Due to the custom nature of the products ordered by the customer and created on demand by Photoblocs, returns are not accepted.
2. If a product is defective, Photoblocs may at their sole discretion remedy the situation with a replacement, credit, or refund.
11. Security Interest and Solvency
Purchaser represents and warrants to Photoblocs that Purchaser is solvent. Photoblocs retains a security interest in goods to secure payment of the purchase price and all other indebtedness and obligations that Purchaser now and in the future owes to Photoblocs. Purchaser shall take all actions that Photoblocs requests to perfect, and to obtain and maintain first priority of, that security interest, and Purchaser shall pay, or reimburse Photoblocs for, all fees, taxes and other costs that are incurred in connection with those actions. To the extent permitted by law, Purchaser waives requirement of being provided with a copy of any financing or verification statement or renewal thereof.
12. Limitations of Liability
1. Photobloc’S LIABILITY WITH RESPECT TO ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR THESE TERMS AND CONDITIONS, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY GOODS OR SERVICES COVERED BY OR FURNISHED UNDER THE AGREEMENT OR ANY EXTENSION OR EXPANSION THEREOF (INCLUDING REMEDIAL WARRANTY EFFORTS), SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE SPECIFIC GOODS OR SERVICES THAT GIVES RISE TO THE CLAIM. ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD SPECIFIED ABOVE.
2. IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL Photoblocs, ITS EMPLOYEES, AGENTS, SUPPLIERS AND AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF PURCHASED POWER OR ENERGY, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, BUSINESS INTERRUPTION COSTS, DOWNTIME COSTS, INJURY TO PERSON OR PROPERTY OR DEATH, OR CLAIMS OF PURCHASERS OF PURCHASER FOR SUCH DAMAGES OR LOSSES, AND PURCHASER WILL INDEMNIFY Photoblocs, ITS EMPLOYEES, AGENTS, SUPPLIERS AND AFFILIATES AGAINST ANY SUCH CLAIMS FROM PURCHASER’S PURCHASERS. IF PURCHASER RESELLS GOODS SOLD HEREUNDER TO ANY THIRD PARTY WHO IS NOT A CONSUMER OF Photobloc’S GOODS, PURCHASER SHALL OBTAIN FROM SUCH THIRD PARTY A PROVISION AFFORDING Photoblocs AND ITS SUPPLIERS THE PROTECTION OF THE PRECEDING SENTENCE. Any action or suit by Purchaser against Photoblocs relating to the Sales Agreement of the goods and/or services covered hereby must be brought within one (1) year of the date of invoice for such goods or services. The parties hereto acknowledge and agree that this is a commercial transaction.
13. Indemnification
Purchaser shall indemnify, defend and hold harmless Photoblocs from and against all claims, demands, causes of action (including third-party claims), losses, damages, expenses (including consequential and incidental damages, court costs and attorney fees) and liabilities of every kind and nature that Photoblocs incurs as a result of Purchaser’s breach of any of Purchaser’s obligations under the Sales Agreement and/or these Terms.
14. Notice
Any notice, approval, consent, waiver, or other communication to be given hereunder shall be in writing and shall be deemed to be given if delivered personally, or sent by registered mail in which case such notice, approval, consent, waiver or other communication shall be deemed to be received on the second business day following the mailing thereof by registered mail to:
Photoblocs
Chelsea House, Chelsea Road
St. Michael, Barbados
and to Purchaser at such mailing address, telephone, facsimile, or email address provided by Purchaser.
15. Entire Agreement
These Terms and any document relating thereto contain the entire agreement between Purchaser and Photoblocs and shall not be altered or amended except by written instrument signed by both parties.
16. Confidentiality/Intellectual Property
1. Purchaser retains ownership of the Content and Images uploaded to Photoblocs. Photoblocs warrants that Content and Images will not be used for any purpose other than the creation of custom goods for the Purchaser without the direct consent of the Purchaser.
2. All technical information and/or Specifications, etc. supplied by Photoblocs in connection herewith shall be treated as strictly confidential by Purchaser and must not be made available to any third party both prior to and after execution of Sales Agreement and delivery of goods and/or provision of services without the prior written consent of Photoblocs.
3. Photoblocs expressly reserves all right, title and interest in any documents, Specifications, and other technical information provided to Purchaser in connection with Sales Agreement, quotation, offer to sell, installation, service, or repair of goods sold, and Purchaser shall return same to Photoblocs upon request.
4. To the extent that goods are supplied in accordance with Purchaser’s Specifications or statements (collectively, the “Statements”), Purchaser represents and warrants that such Statements do not infringe any third party intellectual property rights. Purchaser agrees to indemnify Photoblocs in respect of any claim for intellectual property infringement by a third party resulting from the use of the Statements by Photoblocs.
17. Applicable Law and Jurisdiction
These Terms and any document relating thereto shall be governed by and interpreted according to the laws of Barbados and applicable federal laws of Barbados, without reference to its choice of law rules and excluding the United Nations Convention on the International Sale of Goods, and either party shall bring any action that arises out of or relates the Sales Agreement and/or these Terms in any court in Barbados that has jurisdiction over the subject matter.
18. Jury Waiver
These Terms and any document relating thereto shall be governed by and interpreted according to the laws of Barbados and applicable federal laws of Barbados, without reference to its choice of law rules and excluding the United Nations Convention on the International Sale of Goods, and either party shall bring any action that arises out of or relates the Sales Agreement and/or these Terms in any court in Barbados, that has jurisdiction over the subject matter.