Commercial Licences: Terms and Conditions

Image Reproduction Licence Agreement

Terms and Conditions

1. Applicability

1.1 These TERMS AND CONDITIONS together with the SCHEDULE, content-specific INVOICE and attached specification or other document shall together comprise the binding legal agreement between The Chancellor, Masters and Scholars of the University of Cambridge acting by and through its Museum of Classical Archaeology of Sidgwick Avenue, Cambridge CB3 9DA, United Kingdom (the “University”) and the Licensee (the ‘Agreement’). Words defined in these Terms and Conditions shall have the same meaning in the SCHEDULE, content-specific INVOICE and attached specification or document.

2. Definitions

2.1 The following terms, unless the context requires otherwise, have the following meanings:

Licensed Image means any still image, audio-visual recording, film or video, audio (including any typescripts or reproductions), visual representation generated optically, electronically, digitally or by any other means, including any negatives, transparencies, film imprints, prints, original digital files, or any other product protected by copyright, trademark, patent or other intellectual property rights, which is supplied and licensed by the University to the Licensee in the format specified and under the terms of this Agreement

Licensee means the individual, sole trader, company, partnership or other legal person acquiring a licence hereunder or, if there is a separate Purchaser, the legal person specifically designated as the Licensee and set forth as such in this Agreement

Licensee Product means the product or service created by or on behalf of the Licensee that incorporates a reproduction or representation of the Licensed Image in the product or service

Purchaser means an entity acquiring a licence hereunder on behalf of a third party Licensee.

2.2 In this Agreement (except where the context otherwise requires):

2.2.1 any reference to a clause or sub-clause shall be interpreted as a reference to the clause of sub-clause bearing that number in this Agreement;

2.2.2 use of any gender includes the other genders;

2.2.3 the singular includes the plural and vice-versa;

2.2.4 clause headings are included for ease of reference only and shall not affect the interpretation of this Agreement;

2.2.5 any reference to “person” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trust (in each case whether or not having separate legal personality); and

2.2.6 any reference to a statute, statutory provision or subordinate legislation (“legislation”) shall (except where the context otherwise requires) be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation.

3. Grant of Licence

3.1 in consideration of the Licence Fee and/or other valuable consideration, subject to 3.5 (and save for the supply of image/s for assessment only under 3.4) the University grants to the Licensee a non-exclusive copyright licence to reproduce and use the Licensed Image (or part of it as agreed) for the specific purpose detailed in this Agreement and in accordance with applicable copyright law.

3.2 Permission to reproduce the Licensed Image is strictly limited to the specific use and rights detailed in this Agreement. Unless stated otherwise, all secondary reproductions, including but not limited to, reprints, subsequent editions, products related to the Licensee Product, offshoot productions, derivative products, compilations, further series, renewal of Licence Period, or use of the Licensed Image other than for the specified purpose for which permission is granted necessitates a new application to the University and if applicable to relevant rights holders

3.3 No ownership or copyright in the Licensed Image shall pass to the Licensee by the issuance of a licence contained in this Agreement. The Licensee agrees and warrants that it will not at any time do or suffer to be done any act or thing which will in any way impair or affect the copyright in the Licensed Image.

3.4 Comp Licence: Subject to these Terms and Conditions the University grants to the Licensee a non-exclusive, non-sublicensable, non-transferable and non-assignable right to use the Licensed Image in any internal test, sample, comp or rough cut evaluation material only (“Comp Licence”). Unless otherwise agreed in writing, the Comp Licence term is 60 days from the date of the download or receipt. The Licensee may not copy, distribute, publish, display or otherwise use in any way the Licensed Image after the term of 60 days without obtaining an appropriate licence. If the Licensee does not obtain such a licence, upon expiration of the term of 60 days, the Licensee must destroy all copies of the Licensed Image.

3.5 Unless expressly notified otherwise in the SCHEDULE to this Agreement, where the University does not own the copyright to the Licensed Image or third party material therein, which may include but is not limited to names, people, property, trademarks or copyright material depicted in the Licensed Image, the Licensee is responsible for obtaining all relevant and necessary copyright consents, permissions and clearances from relevant copyright holders prior to use of the Licensed Image. Where the rights holder or owner of any work depicted in the Licensed Image is not known and cannot be ascertained on reasonable enquiry, the Licensee agrees to clear all rights and pay all fees that may become due in respect of use of such third party material in the Licensee Product.

3.6 Use of the Licensed Image is strictly prohibited as a trademark, or for any unlawful purpose or use, or to defame any person, or to violate any person’s moral rights, or to infringe upon any copyright trade name or trademark of any person or entity, regardless whether the Licensed Image is used directly or with other material.

3.7 If any publication right as defined in the UK Copyright and Related Rights Regulations 1996 SI 1996/2967 or any analogous right in any part of the world arises in the Licensee’s use of the Licensed Image, the Licensee hereby assigns all such right/s absolutely to the University for the full term of such right/s.

3.8 The Licensee shall not sell or distribute copies of the Licensed Image separate from the Licensed Product and no exploitation of the Licensee Product shall facilitate or encourage reproduction by unlicensed third parties of the Licensed Image as a standalone file and out of context.

3.9 If the Agreement allows for the reproduction of the Licensed Image on a website, unless otherwise agreed by the University in writing, the Licensed Image shall be displayed at a size and resolution that must not exceed 640 x 480 pixels 72 dpi and the Licensee shall post terms and conditions on its website that prohibit downloading, reproduction, republication, retransmission or other use of the Licensed Image as a stand-alone file save for acts permitted by law.

3.10 Unless otherwise agreed in writing, the Licensed Image may not be copied, stored or transmitted in electronic or other media, save where such is incidentally and wholly necessary to the process of production for incorporation of the Licensed Image in the Licensee Product as licensed. At the conclusion of such production, all intermediate copies of the Licensed Image must be destroyed or permanently deleted.

3.11 The Licensee agrees upon the request of the University to provide one complimentary digital copy of the finished Licensee Product to the University within two weeks of its publication or production, including full access to inspect a restricted access Licensee Product with all necessary passwords for the duration of the Licence Period.

3.12 Where the Purchaser is licensing the Licensed Image on behalf of a Licensee, the Purchaser hereby warrants that:

3.12.1 Purchaser is authorised to act as an agent on behalf of the Licensee and has full power and authority to bind the Licensee to this Agreement; and

3.12.2 if the Licensee subsequently disputes such power and authority, the Purchaser shall be bound and liable for any failure of the Licensee to comply with the terms of this Agreement. Nothing in this clause shall serve to excuse the Purchaser’s obligation to make payment of the Licence Fee.

4. Acknowledgement

4.1 The Licensee shall credit the Licensed Image in the Licensee Product as follows:

and/or any other title or caption specified in SCHEDULE and/or agreed with the University and other rights holder/s (if applicable). Credit shall be accorded, where technically practicable, in equal size and comparable placement to credit/s accorded to licensors of other similar licensed material.

4.2 Unless otherwise agreed in writing, if any Licensed Image is reproduced by the Licensee without the correct credit line specified by the University, an additional 50 per cent of the original Licence Fee shall be payable by the Licensee within 30 days of issue of the invoice.

4.3 The cropping or manipulation of the Licensed Image is not allowed without the written permission of the University. Any such alteration to the presentation of the Licensed Image as agreed in writing with the University must be acknowledged alongside the Licensed Image, e.g. “Detail from”.

5. Licence Fee and Payment

5.1 After the Licence Fee has been agreed and an invoice issued, a firm and binding agreement is made, whereby the University is committed to granting reproduction rights and the Licensee to acquire them. If after such invoicing but before payment, the Licensee requests cancellation of the reproduction licence the University may at its discretion cancel the Agreement subject to the Licensee paying a cancellation fee of 15 per cent of the Licence Fee.

5.2 The Licensee’s right to reproduce the Licensed Image arises only when the University’s invoice relating to the grant of such right is paid in full. Any reproduction before payment of the invoice constitutes an infringement of rights and a material breach of this Agreement rendering the Licensee liable for payment of damages.

5.3 Service fees may be charged to cover administrative costs and despatch of the Licensed Image. The Licensee shall pay for courier, express or any other special delivery arrangement requested.

5.4 The final Licence Fee, any applicable service fees and Licensee requested special delivery charges shall be stated on the invoice.

5.5 Unless otherwise agreed in writing the Licence Fee shall be paid within 30 days of the date of the payable invoice.

5.6 If any payments due under these Terms and Conditions shall remain outstanding after the date on which they are stated to be due, the University shall be entitled to charge interest on the amounts outstanding at a rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from the date payment was due until payment is made.

5.7 The Licence Fee is exclusive of VAT, which the Licensee shall be liable to pay as an additional amount at the rate and manner as prescribed by law. EU customers registered for VAT are required to quote their VAT registration number at the time of placing an order.

5.8 All amounts due under these Terms and Conditions shall be paid in full without any deduction or withholding other than as required by law and the Licensee shall not be entitled to assert any credit, set-off or counterclaim against the University in order to justify withholding payment of any such amount in whole or in part.

5.9 Licence Fee quoted by the University in writing is valid for 30 days.

6. University Warranty and Limitation of Liability; Licensee Indemnity

6.1 The University warrants that the Licensed Image will be free from defects in material and workmanship for 30 days from delivery. The Licensee’s sole remedy for a breach of this warranty is the replacement of the Licensed Image. The Licensee should examine the Licensed Image for possible defects before reproducing the Licensed Image in the Licensee Product. Without prejudice to the remedy above, the University shall not be liable for any loss or damage suffered by the Licensee or any third party arising from any alleged or actual defect in any Licensed Image or in any way from their reproduction.

6.2 Save for the warranty provided in Clause 6.1, all terms, conditions, warranties, representations or guarantees whether express or implied by statute, common law or otherwise relating to delivery, description, performance, quality or fitness for purpose of the Licensed Image are hereby excluded.

6.3 To the extent permitted by law, the University’s aggregate liability for direct loss in contract, tort or otherwise arising in connection with the supply and use of the Licensed Image is limited for one incident or a series of incidents to the lesser of £500 or the total amount paid by the Licensee to the University for the Licensed Image under the Agreement.

6.4 The Licensee agrees to indemnify and keep indemnified the University against any claims, legal proceedings, damages, losses or costs (including reasonable legal fees and expenses) incurred or suffered by the University arising out of or by reason of any breach or alleged breach by the Licensee of the terms of the Agreement including the Licensee’s failure to obtain licences, permissions or clearances as are necessary to use the Licensed Image in the Licensee Product.

6.5 Subject to 6.6, the University shall not be liable to the Licensee or any other third party claiming through it for any loss of profits, revenue, goodwill, business opportunity or any indirect, consequential, financial or economic loss or damage, costs or expenses whether in contract, tort, negligence, breach of statutory duty or otherwise whatsoever or howsoever arising out of or in connection with this Agreement.

6.6 Nothing in this Agreement shall operate to limit or exclude either party’s liability which cannot be excluded or limited by applicable law, including for death or personal injury caused by negligence or for fraudulent misrepresentation.

7. Termination

7.1 The University may terminate this Agreement and any licence granted under these Terms and Conditions immediately by notice in writing to the Licensee if the Licensee:

7.2.1 is in breach of any of its material obligations under this Agreement which if the breach is capable of remedy the Licensee has failed to remedy such breach within 14 days after receipt of notice in writing from the University giving full particulars of the breach and requiring the Licensee to remedy it; or

7.2.2 goes into receivership or liquidation (other than for the purposes of amalgamation or reconstruction) or becomes insolvent or makes any composition or arrangement with its creditors (other than as part of a solvent reorganisation) or being a partnership or other unincorporated association is dissolved or being a natural person dies.

8. Effect of Termination

8.1 On termination of this Agreement, the permission and rights granted in 3.1 cease with immediate effect and the Licensee shall not use the Licensed Image in any way and shall either destroy any Licensed Image and derivatives or copies thereof or return the Licensed Image and all derivatives and copies to the University.

8.2 Termination of this Agreement howsoever caused shall not affect the following:

8.2.1 rights and obligations of both parties under this Agreement in the period up to termination;

8.2.2 rights and obligations of both parties under this Agreement which by their nature are due to continue beyond such termination; and/or

8.2.3 rights of the University to recover any monies payable pursuant to Clause 5 or otherwise and the University shall be under no obligation to refund or return any payments made by the Licensee to the University.

9. Assignment

9.1 The Licensee shall not be entitled to assign its rights and obligations under this Agreement without the prior written consent of the University, save for in connection with the exploitation of the finished Licensee Product incorporating the Licensed Image in accordance with the terms of this Agreement.

10. Variations

10.1 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.

11. Entire Agreement

11.1 This Agreement (which expression includes IMAGE REPRODUCTION LICENCE TERMS AND CONDITIONS, SCHEDULE and INVOICE and attached specification or other document) shall supersede all other arrangements or agreements whether oral or in writing between the parties as to the subject matter of this Agreement.

12. No Partnership or Agency

12.1 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13. Force Majeure

13.1 Neither party shall be liable for delay in performing or failure to perform obligations under this Agreement if the delay or failure results from events or circumstances outside its reasonable control, including, by way of example and without limitation, fires, floods, acts of terrorism, power failures or acts of any government or authority. Such delay or failure shall not constitute a breach of this Agreement and, if it continues for more than 30 days, either party may terminate this Agreement by notice in writing to the other in which event neither party shall be liable to the other by reason of such event or circumstance. Each party agrees to give the other immediate notice upon becoming aware of any such event or circumstance, such notice to contain full details of the event or circumstance.

14. Severability

14.1 If any provision of this Agreement shall be prohibited by or adjudged by a court to be unlawful, void or unenforceable, such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement.

15. Waiver

15.1 The failure of the University to exercise or enforce any rights it may have under this Agreement will not be deemed to preclude any right, relief or remedy available to it should it choose to exercise or enforce those rights.

16. Rights of Third Parties

16.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and nothing in this Agreement shall confer or purport to confer on or operate to give any third party any benefit or any right to enforce any term of this Agreement.

17. Notices

17.1 Any notice to be given under this Agreement shall be in writing and shall be delivered by hand, sent by first class post or sent by facsimile to the address of the other party set out in this Agreement or sent by email to the email address of the other party (or such other address or email address as may have been notified) provided that in the case of notice served by facsimile or by email, such notice is confirmed by letter posted within 12 hours. Any such notice or other document shall be deemed to have been served:

if delivered by hand – at the time of delivery; if sent by post – upon the expiration of 2 business days after posting (in the UK) if the Licensee address is in the UK or 5 business days if outside the UK; and if sent by facsimile or by email – at 9.00am on the next business day after the facsimile or email was dispatched provided that:

(a) in the case of facsimile transmission, a transmission report is generated by the sender’s fax machine recording a message from the recipient’s fax machine, confirming that the fax was sent to that number and that all pages were successfully transmitted; and

(b) in the case of email transmission

(i) where a delivery receipt has been requested by the sender, that such delivery receipt has been received by the sender; or

(ii) where no delivery receipt has been requested by the sender, that no notification of non-delivery has been received by the sender.

18. Counterparts

18.1 This Agreement may be executed in any number of counterparts (original, facsimile or transmitted electronically in either Tagged Image Format Files (TIFF) or Portable Document Format (PDF)) by the parties hereto, each of which when executed and delivered shall constitute an original but all the counterparts shall together constitute one and the same instrument.

19. Governing Law and Jurisdiction

19.1 This Agreement (including without limitation non-contractual disputes or claims relating to this Agreement) shall be governed by and construed in accordance with English law and subject to the exclusive jurisdiction of the English courts.