1.1 By ticking the "accept" box shown on the Application Form (as defined in clause 2 below) you accept that you are legally bound by these terms and conditions, which set out the sole basis of your relationship with SWNS (as defined below) and how you may use the Website (as defined below)
1.2 The Website operates to allow you to exclusively licence to SWNS digital content for which you own the copyright. SWNS has relationships with third party managers of digital content who sell content on multiple platforms including (without limitation) mobile network portals, websites, mobile websites, and managed WAP sites. Content exclusively licensed by you to SWNS shall be made available to the third party content managers and, where sold, SWNS monetary income as a result of that sale will be split with you in accordance with this Agreement (as defined below) (the "Business")
In these terms and conditions the words and expressions set out below shall, unless the context otherwise requires, have the following meanings:
'Agreement' means the contract entered into between you and SWNS as constituted by your acceptance of these terms and conditions
'Application Form' means the form on the Website to be completed by you as a condition of being able to submit Content;
'Business Day' means any day other than a Saturday, a Sunday, or a public holiday in England;
'Charges' means the fees which are paid by you in accordance with this Agreement for Content provision as set out on the Website;
'Commencement Date' means the date the Content is received [and approved] by SWNS;
'Confidential Information' means all information which is imparted or obtained under or in connection with this Agreement on, before or after the Commencement Date in confidence (whether in writing, verbally or by other means and whether directly or indirectly) or is of a confidential nature, relating to the business or prospective business, current or projected plans or internal affairs of either of the parties, including in particular, but not limited to, the terms of this Agreement, all know-how, trade secrets, products, operations, processes, product information and unpublished information relating to either of the parties' Intellectual Property Rights, and any other commercial, financial or technical information relating to the business or prospective business of either of the parties;
'Content' means the material provided by you to SWNS via the Website; including, but not limited to .jpeg, .tiff, .png, .mp3, .mov, .wma, .wmv, .avi, .bmp and .mpeg files.
'Intellectual Property Rights' means any current and future intellectual property rights and any analogous intangible rights and privileges, including:
(a) copyrights, trade marks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, all rights of whatsoever nature in computer software and data, rights in databases, any current and future privacy rights personality rights and/or publicity rights or any similar or analogous rights and privileges including all forms of protection of a similar nature which may subsist anywhere in the world; and
(b) any rights and privileges related to any of the above,
(c) in every case in any part of the world and whether or not registered, including in relation to the above:
(d) all granted registrations and all applications for registration;
(e) all renewals, reversions or extensions;
(f) the right to sue for damages for past infringement; and
(g) all forms of protection of a similar nature which may subsist anywhere in the world;
'SWNS' means South West News Service Limited (UK Company number 02272011) and includes any subsidiary undertaking, parent undertaking of South West News Service Limited and any subsidiary undertaking of any such parent undertaking of South West News Service Limited;
'Term' means the term of the Agreement as set out in clause 4;
'Territory' means the world;
'Third Party Claim' has the meaning set out in clause 10.1.1;
'Trade Marks' means registered and unregistered trade marks, and any logos, belonging or licensed to you which are to be licensed to SWNS as set out in the Application Form;
'VAT' value added tax pursuant to either the Value Added Tax Act 1994 or the EU Sixth Directive 77/388;
'Website' means that internet site situated at http://www.sellusyourpicture.com; and
'you' means you, the individual or entity licencing Content to SWNS. 'Your' shall be interpreted accordingly.
3.1 For the avoidance of doubt it is hereby agreed that it shall be in SWNS's absolute discretion as to whether, and if so how, such Content shall be used in connection with the Business (save that such use shall always be within the terms of clause 4 below).
4.1 You hereby grant to SWNS an exclusive licence with the right to sub-license throughout the Territory for the Term to:
4.1.1 copy, reproduce and store copies of the Content in such format and by such technology and/or media (whether now known or later devised) as SWNS may require;
4.1.2 publish, distribute, transmit, and otherwise reproduce all or part of the Content in connection with the Business (including, for the avoidance of doubt, as part of printed content catalogues);
4.1.3 use and reproduce (but without any obligation to do so) the Content and the Trade Marks, in connection with:
(a) any marketing or promotional information or activity relating to or connected with the Business; and/or
(b) the exploitation of the Content in accordance with the rights granted under this Agreement;
4.1.4 edit, resize, crop, modify, alter, digitally enhance or otherwise amend the Content as required to enable its use and optimize its format on any device,
and the licence set out above shall extend to all vested, future and contingent rights to which you are now or may in the future be entitled to the extent they may be necessary or desirable to enable SWNS to exploit the Content in connection with the Business.
4.2 SWNS shall be entitled to delegate, sub-license or assign all or any of the rights licensed to it under this Agreement to any third parties. 4.3 You waive all moral rights in the Content, in favour of SWNS.
5.1 Unless earlier terminated in accordance with the provisions of these terms and conditions, the Agreement shall commence on the Commencement Date and shall continue in force unless and until terminated by either party giving the other at least 60 days' notice in writing.
6.1 Either party may terminate this Agreement immediately by giving written notice to the other if the other party commits any material breach of its obligations under this Agreement and, in the case of a breach which is capable of remedy, fails to remedy it after being given 14 days written notice specifying the breach, requiring it to be remedied and specifying the remedy required.
7.1 The rights granted to SWNS under clause 4.1 and 4.2 shall terminate 180 Business Days after any termination or expiry of this Agreement.
7.2 Termination or expiry of this Agreement shall not affect the rights or liabilities of either party accrued prior to termination or expiry or any terms intended expressly or by implication to survive termination or expiry.
8.1 SWNS shall pay you the Charges in accordance with the Website. The amounts set out on the Website are exclusive of any applicable VAT or other taxes that shall additionally be paid by SWNS subject to you providing us with a valid VAT invoice, quoting inter alia your VAT registration number.
8.2 SWNS may withhold or deduct from any payment due under this Agreement any amount whatsoever required by law to be so withheld or deducted.
8.3 You shall be responsible for the payment of all third party fees (including without limitation any sums due to any third party owner of the Content and/or the Trademarks or of any rights or privileges of whatever nature relating to the Content and/or the Trademarks or any collecting societies, including without limitation MCPS-PRS) arising in relation to SWNS' exploitation of the Content and the rights granted under this Agreement.
8.4 SWNS may at any time or times, without notice to you, set off any liability of you to SWNS against any liability of SWNS to you, whether any such liability is present or future (whensoever arising), liquidated or unliquidated, under this agreement or not and irrespective of the currency of its denomination. If the liabilities to be set off are expressed in different currencies, SWNS may convert either liability at a market rate of exchange for the purpose of set off. Any exercise by SWNS of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this agreement or otherwise.
9.1 You warrant, represent and undertake to SWNS that:
9.1.1 the Content:
(a) is not defamatory of any person, business or undertaking, does not bring any person, business or undertaking into disrepute and is not unfair, libelous, misleading or obscene; and
(b) does not infringe the Intellectual Property Rights of any third party;
9.1.2 you have obtained all necessary rights, permissions, consents and waivers from any third parties to license to SWNS the exploitation of the Content in accordance with the terms of this Agreement;
9.1.3 you have not (and shall not in the future) and, in cases where you are not the owner of the Intellectual Property Rights in the Content, you warrant that the owners have not, previously licensed, assigned, granted or in any way encumbered (and shall not in the future license, assign, grant or encumber) the Content or any rights so as to derogate from the licence granted under this Agreement. Without prejudice to the generality of the foregoing, you will not enter into any agreement or arrangement in respect of the Content with an entity that will operate in competition with the Business.
9.1.4 the Content, and the performance of your obligations under this Agreement, complies with all applicable laws from time to time in force in connection with this Agreement including, but not limited to English and all other relevant national or international consumer protection laws and directives;
9.1.5 all media containing Content, or used to produce and deliver the Content, and all components shall be:
(a) substantially and materially free from defects;
(b) free of any computer virus or harmful, malicious or hidden program or data, locks, 'time bombs' including, without limitation, any hardware or software device or code which shall compromise data security or prevent SWNS from accessing or using the Content or any portion of it;
9.1.6 you have the power to enter into and to execute, deliver and perform the obligations contained in this Agreement without any qualifications and caveats.
10.1 You shall irrevocably indemnify and hold SWNS harmless from and against all direct and indirect losses, claims, liability, costs, damages, fines or expenses (including all legal costs) incurred or suffered by SWNS arising out of or in connection with:
10.1.1 any claim that the Content or any other material created or supplied by you, to SWNS infringes any third party Intellectual Property Rights ("Third Party Claim"); or
10.1.2 any breach by you of any provision set out in this Agreement or any breach of warranty, or the acts or omissions of you.
10.2 SWNS shall, at its absolute discretion, have the right to defend any Third Party Claim, or require you to conduct the defence of any Third Party Claim.
10.3 If SWNS requires you to conduct the defence of a Third Party Claim, you shall:
10.3.1 keep SWNS fully informed of the details of the conduct of the defence of such Third Party Claim;
10.3.2 comply with all of SWNS reasonable demands in relation to the conduct of the defence of such Third Party Claim; and
10.3.3 not settle the Third Party Claim without the prior written agreement of SWNS, which may be granted or withheld in SWNS's absolute discretion.
11.1 Save as is otherwise required by law or any regulatory authority, each party undertakes to the other that during and after the Term it shall keep secret and shall not without the prior written consent of the other party disclose to any third party any Confidential Information learned by the recipient party or disclosed to the recipient party by such other party pursuant to or otherwise in connection with this Agreement, except where any Confidential Information:
11.1.1 is or shall (otherwise than by breach of this Agreement) be in the public domain;
11.1.2 is in the possession of the recipient party other than pursuant to disclosure from the other party; or
11.1.3 subsequently comes lawfully into the possession of the recipient party from a third party without the imposition of any duty of confidentiality by such third party.
11.2 To the extent that it is necessary to implement the provisions of this Agreement the recipient party may disclose Confidential Information to its employees as may reasonably be necessary, provided that the recipient party shall:
11.2.1 before disclosure, make such employees aware of their obligations of confidentiality under this Agreement;
11.2.2 at all times procure compliance with such obligations of confidentiality.
12.1 SWNS's liability for all direct, indirect or consequential losses, loss of profit, loss of business opportunity or otherwise, arising out of or in connection with this Agreement shall in no circumstances exceed the total amount payable to you under this Agreement as at the date upon which the relevant liability arises.
12.2 Nothing in this Agreement is intended and nor shall it be construed as an attempt by any party to exclude or limit its liability for any liability which cannot be excluded or limited under applicable law, including without limitation its liability for death or personal injury caused by its negligence or for its fraudulent misrepresentation.
13.1 You shall be an independent contractor of SWNS and nothing in this Agreement shall be construed as to deem you to be an agent, employee, servant, partner or joint venture of or with SWNS.
13.2 You shall not make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of SWNS (such consent to be provided at SWNS's absolute discretion) except as required by law or any governmental or regulatory authority or by any court or other authority of competent jurisdiction.
13.3 You shall not, without the prior written consent of SWNS (such consent to be provided at SWNS's absolute discretion) seek to exploit your relationship with SWNS or this Agreement in any way.
14.1 This Agreement constitutes the whole agreement and understanding between the parties with respect to its subject matter and supersedes all prior agreements, negotiations and discussions between the parties relating to its subject matter.
15.1 No amendment to this Agreement shall be effective unless made in writing and signed by both parties or their duly authorised representatives.
16.1 This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the English Court.
17.1 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
18.1 You covenant with SWNS that you shall, at the request of SWNS and at your cost, do all such further acts and execute all such documents as may from time to time be necessary to give effect to this Agreement.