PARTIES
(1) GM MEDIA, Michael Natzmer registered in Germany, Isarweg 19a, 51061 Köln with sales tax identification number according to § 27 a Sales Tax Act: DE226822725 (Licensor).
(2) Licensee who agrees to the terms of this Agreement by ticking the box on the checkout page.
BACKGROUND
(A) The Licensor runs a Company providing artwork in the form of eBook covers “Products” consisting of one or more photographs or artwork available to purchase by an Author who under the terms of this Agreement will be the Licensee.
(B) These eBook covers are available to purchase via a Website run by the Licensor.
(B) The Products are designed and created by the Designer.
(C) The Licensor has agreed to license to the Licensee use of the Product as a front cover for an eBook as delineated below and on the terms set out in this Agreement.
It is therefore agreed as follows:
- Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this Agreement and Background
Author being the writer of the eBook
Commencement Date means the date the Licensee agreed to the terms of this Agreement.
Designer means an individual who creates and designs the Products
Fee means the Fee due and immediately payable to the Stock House once the Print Run has been met and or exceeded
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Price means the price as stipulated at Clause 5
Print Run means number of copies of the eBook sold or distributed with a limit of up to 250,000
Products means eBook covers displaying artwork designed and created by the Designer consisting of one or more photographs or artwork to be used as an eBook cover purchased by prospective Licensees which are purchased via the Licensor’s Website.
Stock House means the source of the stock photography used in the eBook cover
Website means thebookcoverdesigner.com or any other related website the Licensor works from
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
- APPOINTMENT AND SCOPE OF THE LICENCE
2.1 The Licensor grants to the Licensee a non-transferable, revocable Licence commencing on the signing of this Agreement
2.2 The Licensor grants the Licensee a Licence to use the Product on their eBook subject to the terms of this Agreement and payment of the Price including distribution, publication, use, transmission and display and cropping of the Product on the eBook
2.3 This Licence is subject to a cap on the Print Run as defined. Copies of the eBook running over this figure will incur the Fee payable to the Stock House by the Licensee. Once the Print run has been reached it is the Licensee’s responsibility to notify the Stock House immediately.
- LICENSEE’S ACKNOWLEDGEMENTS AND WARRANTIES
3.1 The Licensee will notify the Licensor once the Print Run has been met and exceeded and pay the Stock House the Fee.
3.2 The Licensee warrants that the Licensor cannot in any way be held responsible for Licence infringement.
3.3 The Licensee acknowledges that it is aware of the nature of the compilation of the artwork on the Products being one or more photographs set by the Designer on the front of the eBook. Any combination purchased by the Licensee is exclusive to them and will not be licensed by the Licensor again and removed from the Website, HOWEVER, it is possible that another Designer not affiliated with the Licensor could recreate the same Product elsewhere without the Licensor’s notice and in this event the Licensee acknowledges that the Licensor is not liable in any way.
- LICENSOR’S WARRANTIES
4.1 The Licensor warrants that the Products were created and designed by Designers and are exclusive to the eBook cover of the Licensee. In any circumstances where the Products have been recreated elsewhere by the Designer the Licensor is in no way liable to the Licensee.
4.2 The Licensor will use all endeavours to ensure that the Products do not infringe or make unauthorised use of any Intellectual Property Rights of any third party
- PRICES AND PAYMENT
5.1 The Licensee shall pay the Price of the eBook cover as advertised on the Website
5.2 The Licensee will pay the Fee to the Stock House on such occasions as the Print Run is met and exceeded
5.3 Payment of the Price is made immediately to the Licensor through their merchant system via the website
5.4 Any and all expenses, costs and charges incurred by the Licensor in the performance of its obligations under this agreement shall be paid by the Licensor, unless the Licensor has expressly agreed in advance in writing to pay such expenses, costs and charges.
6.1 This Agreement takes effect on the Commencement Date and continues indefinitely after that until terminated on the following grounds:
6.1.1 The Licensee can terminate this Agreement by giving 14 days written notice to the Licensor.
6.1.2 The Licensor may terminate this Agreement immediately and at any time and any notice if the Licensee:
6.1.2.1 commits a breach of any term of this Agreement and fails to remedy that breach within 7 days or
6.1.2.2 acts in a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement
- LIMITATION OF LIABILITY
7.1 Neither party excludes or limits liability to the other party for:
7.1.1 fraud or fraudulent misrepresentation;
7.1.2 death or personal injury caused by negligence;
7.1.3 a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
7.1.4 any matter in respect of which it would be unlawful for the parties to exclude liability.
7.2 The Licensor shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
7.2.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
7.2.2 any loss or corruption (whether direct or indirect) of data or information;
7.2.3 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
7.2.4 any loss or liability (whether direct or indirect) under or in relation to any other contract.
- FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
11.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
11.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
11.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
Except as expressly provided in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
13.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
14.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).