Terms and Conditions
The following terms and conditions of our company (Clipping Beast) shall have the meaning set forth below:
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;
The agreement, including these Terms and Conditions, concluded between Clipping Beast and the Client for provision of the Service, either in the form of a written agreement or as the result of Clipping Beast’s confirmation of the acceptance of an Offer by the Client in accordance with clause 3.1;
A programming interface consisting of a direct and secured internet connection between a Client’s systems and the Clipping Beast Systems (and Software);
The form of provision of the Service by Clipping Beast whereby Clipping Beast and the Client have agreed the applicable fee for the Images in the Agreement and for the avoidance of doubt, whereby Clipping Beast does not make separate Offers for particular Images;
Any individual or business that has entered into an Agreement with Clipping Beast;
All photos and other images submitted by the Client to Clipping Beast within Client’s Account with regard to which Images Clipping Beast will provide its Service;
All intellectual property and ancillary rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, as well as know-how rights;
Any usernames, passwords, keys and other codes used by the Client in order to be provided with the Service;
The clipped and/ or edited Images resulting from the Service;
The private limited liability company Clipping Beast Pvt. Ltd., listed in the Government of Nepal, Ministry of Industry, and Office of the Company Registrar for Clipping Beast Under file number 142429/072/073;
Clipping Beast Systems and Software:
The systems, databases, Account, API’s, Storage Location, plugins, software and any other programmed code provided to and used or accessed by the Client in accordance with the
An offer or quote by Clipping Beast either for providing the Service for i) particular Images, or ii) Images on the basis of an Agreement.
Clipping Beast and Client, each being a Party;
Any information relating to an identified or identifiable natural person;
The services provided by Clipping Beast 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 Clipping Beast Systems and Software;
The charges, fees or price for the Service;
The service network Clipping Beast has established, apart from its own corporate group, and which consists of a number of carefully selected professional companies, with which Clipping Beast has agreements in place and which are engaged in the provision of the Clipping Beast Service;
The location in or on Clipping Beast Systems and Software.
Terms and Conditions:
These general terms and conditions;
The website of Clipping Beast, accessible via www.ClippingBeast.com, through which Website the Client can obtain access to its personal Account, submit Images and retrieve Materials.
2.1. The Terms and Conditions apply to all Agreements pursuant to which Clipping Beast 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, Clipping Beast 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.
3.1. Offers by Clipping Beast shall be understood to be non-binding. An Agreement becomes effective only subject to Clipping Beast’s confirmation of a Client’s acceptance of an Offer. Clipping Beast 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 Clipping Beast, with respect to, inter alia, the Images and the Client specifications for the Materials upon which information Clipping Beast bases its Offer and the details for creation of the Client’s Account. If the aforementioned information proves to be inaccurate or incomplete, Clipping Beast 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 Clipping Beast. Clipping Beast is not obliged to implement an amendment or addition and may require a separate written agreement to be concluded in respect thereof.
3.5. Clipping Beast will only provide its Services:
3.5.1. with regard to the supported file types, which file types are displayed on the Website or specified in the Agreement;
3.5.2. 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;
3.5.3. if the Client uses one of the approved payment methods, which are listed on the Website or in the Agreement; and
3.5.4 if the submitted Images are of the quality of the then-current industry standards.
3.6. If Clipping Beast 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 Clipping Beast set forth in clause 3.5 of these Terms and Conditions, Clipping Beast will so notify the Client. Clipping Beast 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 Clipping Beast, unless otherwise agreed to in writing. In so far as a fixed price has been agreed for the Service, Clipping Beast 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 Clipping Beast 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 as implemented will not apply.
3.9. The Client acknowledges and agrees that Clipping Beast, 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.
4.1. Clipping Beast will provide the Service on the basis of a reasonable endeavors obligation.
4.2. Clipping Beast will, subject to the Agreement, use its reasonable endeavors to provide the Service to the Client within 48 hours either:
4.2.1.after the Client’s acceptance of the Offer made by Clipping Beast following a successful submittal of the Images by the Client and Clipping Beast’s assessment of those Images; or,
4.2.2. after successful submittal 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 endeavors of Clipping Beast, Clipping Beast fails to provide the Materials in accordance with clause 4.2 of these Terms and Conditions, Clipping Beast will endeavor, as an exclusive remedy to the Client, to provide the Materials within the next 48 hours thereafter.
4.4. All delivery dates in relation to the Service issued by Clipping Beast are estimates only. The Client is not allowed to suspend its payment obligation if the anticipated time of delivery is exceeded by Clipping Beast.
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 Clipping Beast 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 Clipping Beast 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 Clipping Beast 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. Clipping Beast is therefore free to decide whether re-executing of the Service will result in Materials of a higher level of conformity. If, at Clipping Beast’s sole discretion, the level of conformity of the delivered Materials cannot be improved, Clipping Beast 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 Clipping Beast to re-execute the Service will lapse after 14 days following notification by Clipping Beast 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.
Clipping Beast shall be entitled to charge an additional fee to the Client if re-executing the Service requires Clipping Beast to make additions to or to amend the agreed Service in order to achieve a higher level of conformity of the Material.
5. 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 Clipping Beast, the Client will be redirected to the payment service provider of Clipping Beast or, if so agreed, Clipping Beast 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. Clipping Beast does not accept any liability concerning the correct reception of this notification e-mail and Clipping Beast 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 Clipping Beast 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 Clipping Beast Systems and Software with the Login Details, including use by third parties, whether authorized or unauthorized. 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 Clipping Beast 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 Clipping Beast Systems and Software only contain the functionalities and information that are present at the moment of use (“as is” basis).
5.5. Clipping Beast 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. Clipping Beast 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.
6. FTP Connection
6.1. If so agreed, Clipping Beast shall provide the Services inclusive of the FTP conection.
7. 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. Clipping Beast shall only be allowed to use (and to allow the parties in Clipping Beast’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 Clipping Beast to the Client, the Client shall grant Clipping Beast 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, Clipping Beast hereby assigns to the Client any and all IP Rights it possesses in connection with these Materials. Insofar as (parts of) the IP Rights can not be assigned or transferred under the relevant national law(s), Clipping Beast authorizes the Client to perform all further acts necessary to transfer to the Client any and all IP Rights Clipping Beast has, may have or will have in connection with the Materials to the Client.
7.4. All IP Rights in the Clipping Beast Systems and Software to the extent used or made available to the Client by Clipping Beast for the performance or provision of the Service, shall remain with Clipping Beast or its licensors. Clipping Beast grants the Client a limited, personal, non-sub licensable, non-transferable and non-exclusive license to use the Clipping Beast 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. Clipping Beast reserves the right to change the Clipping Beast Systems and Software at any time or to provide the Client with new versions or updated access details. Clipping Beast will announce material changes to the Clipping Beast Systems and Software upon prior notice, allowing a Client sufficient time to prepare for any impact at the Client’s end.
8. 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 use one of the payment methods specified on the Website, in the Offer or in the Agreement.
8.2. The Service Fee will be in US$, unless stated otherwise. All amounts due will be inclusive of any sales and turnover tax, such as VAT and other governmental levies/taxes.
8.3. Clipping Beast 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 Clipping Beast 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, Clipping Beast may hand over the claim for collection. In that event all costs incurred by Clipping Beast, 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.
8.6. Complaints in relation to invoices and/or the Services will not suspend the payment obligations of the Client.
Clipping Beast will be entitled to suspend the fulfillment of its obligations until such time as the Client has fully paid all Service Fees due.
9.1. When visiting the Website, creating an Account and making use of the Service, the Client will provide Personal Data to Clipping Beast.
9.2. When dealing with Personal Data of the Client, Clipping Beast shall comply with the Data Protection Law and Policy Nepal, which means that:
9.2.1. Clipping Beast will only use the data needed to provide the Service and, if applicable, to enable the processing of payments; and
9.2.2. Clipping Beast will not share Personal Data of the Client with any third party without the Client’s consent except where Clipping Beast is required to do so by law.
9.3. To the extent that the Images would be considered Personal Data for the purpose of the Nepal Protection Act, Clipping Beast, while performing the Service, acts as the processor of such Personal Data and shall only use the Images for the purpose for which they were provided by the Client.
10. GUARANTEES AND INDEMNITIES
10.1. The Client guarantees that:
10.1.1. 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;
10.1.2. 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 Clipping Beast is not in any other way unlawful in respect of third parties;
10.1.3. it will keep secure all Login details and any passwords, codes and related instructions provided by Clipping Beast or used in relation with the Service;
10.1.4. it will never submit Images that:
10.1.4.1. are in any way discriminating, offensive and/or obscene;
10.1.4.2. contain violent or unlawful content; or
10.1.4.3. harm the interests and reputation of Clipping Beast
10.1.5. 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;
10.1.6. will not carry out activities which may impede the functionality of the Service; and
10.1.7. will not use applications that monitor the Service or that copy parts of them.
10.2. The Client shall indemnify Clipping Beast and hold Clipping Beast harmless from and against any and all costs (including reasonable legal fees) and damages incurred by Clipping Beast as a result of:
10.2.1. any third party claim which is made against Clipping Beast in connection with an (alleged) attributable breach by the Client of the guaranteed obligations under the Agreement;
10.2.2. any and all costs and damages which Clipping Beast 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. Clipping Beast guarantees to:
10.3.1. 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”;
10.3.2. impose on the members of its Service Network:
10.3.2.1. the obligation with respect to IP Rights as per clause 7.3 of these Terms and Conditions; and
10.3.2.2. the confidentiality obligation as per clause 13.2 of these Terms and Conditions.
10.4. Clipping Beast 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:
10.4.1. any third party claim which is made against the Client in connection with a breach by Clipping Beast of the guarantees contained in clause 10.3 of these Terms and Conditions; or
10.4.2. the Client having had to initiate legal proceedings in order to obtain the IPRs of any Materials from any member of Clipping Beast’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.
11. LIMITATION OF LIABILITY
11.1. Clipping Beast endeavors to ensure that the Service rendered is of the highest possible quality. However, since the quality of the Service depends on several factors, Clipping Beast cannot guarantee that the quality of the Material lives up to the expectations of the Client.
11.2. The total liability of Clipping Beast 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 Clipping Beast 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 willful misconduct, gross negligence, fraud, fraudulent misrepresentation, death or personal injury.
12. FORCE MAJEURE
12.1. Clipping Beast 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 Clipping Beast.
12.2. If Clipping Beast 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 Clipping Beast limiting its other rights or remedies or incurring any liability towards the Client in respect of such termination.
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 Clipping Beast 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.
14. 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 Clipping Beast 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:
14.2.1. 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;
14.2.2. 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 Clipping Beast to be detrimental, in particular when the Client does not fulfill its obligations under these Terms and Conditions, Clipping Beast is entitled to suspend provision of the Service to the Client. Clipping Beast shall not be liable for any loss arising in respect of the foregoing.
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 initialed by any of the Parties to this Agreement.
16. GOVERNING LAW
The Terms and Conditions, the Agreement and any use the Client makes of the Service are subject to Nepal law and any dispute arising out of it that cannot be solved amicably shall be settled before the competent Supreme Court of the Nepal.