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IMAGE AGREEMENT

 
NON-EXCLUSIVE 
IMAGE LICENSING AGREEMENT
 
The Licensor (Weston Earth Images) hereby grants to the Licensee a non-exclusive licence (the “Licence”) within the Territory for the term of two years to use the Licensed Rights and the Image(s) solely for the Application(s) described, subject to final written confirmation being provided by the Licensor within 5 business days of this Agreement being completed, and subject to the terms of the Agreement as detailed below.
 
This Agreement provides for non-exclusive personal and limited commercial use of the Image(s). A different licencing agreement will apply for exclusive use and/or for larger scale commercial and/or for longer duration applications. See Commercial Image Licence to the left.
 
Approval will not be given for use of the Image(s) for scarves without further details being provided.
 
1. Scope of Licence
1.1 The Licensee may not use the Licensed Rights or the Image(s) for any purposes other than those which are directly related to the stated Application(s).
 
2. Payment
2.1 The Licensee shall immediately and in advance pay to the Licensor the sum(s) due for the Licence under this Agreement.
 
3. Licensor’s Warranties
3.1 The Licensor hereby warrants and represents that:
3.1.1 the Licensor is free to license the Licensed Rights to the Licensee;
3.1.2 to the best of its current knowledge and belief, the Licensed Rights are not being infringed (nor threatened to be so) by any third party as at this date;
3.1.3 to the best of its current knowledge and belief, no third party has infringed the Licensed Rights at any time prior to this date; and
3.1.4 nothing in the Image(s) is offensive, indecent, obscene, illegal, dishonest, untruthful, defamatory or discriminatory, and nothing in the Image(s) will infringe the common law or statutory rights of any third party.
3.2 The Licensor gives no warranties nor makes any representations beyond those detailed in sub-Clause 3.1 with respect to the Image(s), the Licensed Rights and any other matters arising out of this Agreement.
 
4. Licensee’s Warranties
The Licensee hereby warrants and represents that:
4.1 it has the right to enter into this Agreement;
4.2 it shall pay all sums due under this Agreement;
4.3 it shall not exceed the rights granted by this Agreement and;
4.4 it shall acknowledge Weston Earth Images (not to be abbreviated to Weston) as the source of the Image(s) and as copyright holder whenever possible and appropriate.
 
5. Indemnity
5.1 The Licensee shall indemnify and hold harmless the Licensor against any claim, loss, damage, proceedings, settlement, costs or expenses howsoever arising, directly or indirectly, as a result of any breach or non-performance by the Licensee of any of its obligations, undertakings or warranties as set out in this Agreement.
5.2 The Licensor shall not indemnify and hold harmless the Licensee against any claim, loss, damage, proceedings, settlement, costs or expenses howsoever arising, directly or indirectly, as a result of any knowing breach or non-performance by the Licensor of obligations as set out in this Agreement.
5.3 The indemnities set out in sub-Clauses 5.1 and 5.2 shall apply provided that in all cases the indemnified Party shall:
5.3.1 notify the indemnifying Party as soon as is reasonably possible of any claim, loss or damage;
5.3.2 consult the indemnifying Party as to the action to be taken in dealing with any such matters; and
5.3.3 make no agreement with any third party for the payment of any sum without the prior agreement of the indemnifying Party, such agreement not to be unreasonably withheld.
 
6. Proceedings
6.1 The Licensee shall inform the Licensor immediately if it becomes aware of any:
6.1.1 infringement, actual or suspected, of any of the Licensed Rights; or
6.1.2 claims that the Image(s) or the Licensed Rights infringe the rights of any third party.
6.2 In the event of any infringement or claim arising under sub-Clause 6.1:
6.2.1 the Licensor shall determine the action to be taken;
6.2.2 the Licensor shall be solely responsible for the conduct of any claims or proceedings;
6.2.3 the Licensee shall provide all reasonable assistance that may be reasonably required by the Licensor in order to conduct any claims or proceedings;
6.2.4 the Licensor shall not reimburse the Licensee for costs or expenses (including legal costs) incurred by the Licensee in rendering assistance under sub-Clause 6.2.3; and
6.2.5 the Licensor shall bear the cost of any claims or proceedings and shall be solely entitled to any and all sums recovered from a third party in such claims or proceedings unless otherwise agreed in writing by the Parties.
 
7. Confidentiality
7.1 Both the Licensor and the Licensee undertake that they shall, except as provided by sub-Clause 7.2 or as authorised in writing by the other, at all times during the continuance of this Agreement  and for two years after its termination: keep confidential all Confidential Information; not disclose any Confidential Information to any other party; not use any Confidential Information for any purpose other than as contemplated by this Agreement; not make any copies of, record in any way or part with possession of any Confidential Information; and ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of these provisions.
7.2 Subject to sub-Clause 7.1, either Party may disclose any Confidential Information to: any of their sub-contractors or suppliers if necessary; any governmental or other authority or regulatory body; or any of their employees or officers or those of any party described in sub-Clause 7.1 only to the extent that is necessary for the purposes contemplated by this Agreement, or as required by law. Unless the recipient is a body described in sub-Clause 7.2 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
7.3 The provisions of this Clause 7 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
 
8 Term and Termination
8.1 This Agreement shall come into force on the date of payment and shall continue in force for a period of two years (the “Term”) unless otherwise terminated in accordance with this Clause 8.
8.2 The Term may be renewed on terms and conditions to be agreed by the mutual consent of both Parties.
8.3 The Licensor has the right to terminate this Agreement immediately by written notice if the Licensee:
8.3.1 has committed a material breach of this Agreement, unless such breach is capable of remedy in which case the right to terminate immediately will be exercisable if the other Party has failed to remedy the breach within 21 days after a written notice to do so;
8.3.1.1 has an encumbrancer take possession, or (being a company) has a receiver appointed of any of its assets or property;
8.3.1.2 holds a meeting of its creditors or proposes, enters into any arrangement, moratorium or composition with or for the benefit of the same (including any voluntary arrangement as defined by the Insolvency Act 1986) or, (being a company), becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
8.3.1.3 has (being an individual or firm) a bankruptcy order made against it or (being a company) goes into liquidation (except for the purposes of amalgamation or reconstruction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that Party under this Agreement); or
8.3.1.4 ceases, or threatens to cease, to carry on business.
8.3.2 Sub-Clause 8.3.1 shall also apply in the event that anything analogous to any of the provisions of that sub-Clause occurs under the law of any jurisdiction.
8.3.3 Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Agreement shall survive termination under this Clause 8.
 
9 Post Termination
9.1 Upon the termination of this Agreement for any reason, the Licensee shall:
9.1.1 immediately cease production of the Application(s) and shall not accept any new orders for the same;
9.1.2 immediately cease any and all use of the Licensed Rights and the Image(s) or
9.1.3 immediately apply to extend the Licencing Rights.
9.2 In the event of the Licensee continuing to use the Image(s) without a valid Licence then the Licensor reserves the right to charge a fee equal to no less than four times the original fee immediately payable upon notification.
 
10 Copyright And Non-Assignment of Agreement
10.1 All copyright in the Images shall be retained by the Licensor at all times throughout the world.
10.2 Title to all Images remains with the Licensor at all times.
10.3 WEI hereby asserts its right to be identified as the author of an artistic work (the Images) in accordance with the provisions of Chapter IV of the Copyright, Designs and Patents Act 1988.
10.4 The Licensee shall acknowledge Weston Earth Images (not to be abbreviated to Weston) as the source of the Image(s) and as copyright holder whenever possible and appropriate.
10.5 The Licensee shall not assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the Licensor, such consent not to be unreasonably withheld.
 
11 Notices
11.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by the Party giving the notice or by a duly authorised officer thereof, as appropriate.
11.2 Notices shall be deemed to have been duly given when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid.
11.3 All notices under this Agreement shall be addressed to the most recent address or e-mail address notified to the other Party.
 
12 Force Majeure
Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.  Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
 
13 No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement.  Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
 
14 Severance
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
 
15 Law and Jurisdiction
15.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
15.2 Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.